Abstract: The federal government
possesses broad powers under Section 361 of the Public Health
Service Act to regulate the entry and spread of communicable
diseases into and among the United States. Though this power has
played a central role in United States history since the time of
the colonies and remains important today, no complete history of
its development and use exists. In our era of almost unlimited
communicable disease possibilities, to ignore past experience is
folly—a waste of informational resources that could prove
instructive today. This paper attempts to fill that gap, providing
a policy history to explain the evolution of federal quarantine and
inspection powers.

Through Section 361 of the Public Health Service
Act, Congress has endowed the Surgeon General with the
responsibility and power to:

"[M]ake and enforce such regulations as in his
judgment are necessary to prevent the introduction, transmission,
or spread of communicable diseases from foreign countries into the
States or possessions, or from one State or possession into any
other State or possession."[1]

The breadth of this power is matched only by the
importance of its goal. The evolution of federal quarantine law
into its present form has been driven primarily by an intermittent
series of deadly epidemics. Since the colonial era until the
passage of the Public Health Service Act of 1944, the power to
protect against external threats of communicable diseases had
gradually shifted from state and local authorities to federal
authorities. This federal power expanded from protection against
communicable diseases of foreign origin to include protection
against the interstate transmission of communicable diseases as
well. The statute's breadth is evidenced by its application,
governing the inspection and quarantine of subjects as varied as
humans, turtles, and used tire casings. As air travel
revolutionized the speed and volume with which foreign travelers
and immigrants reach the United States, the Public Health Service's
legal power became a less salient issue than its ability to enforce
that power. Because of the impossibility of fully screening the
tidal wave of entering people and commerce, the late twentieth
century brought a shift from the paradigm of borders as disease
barriers to the paradigm of global disease prevention. In our world
of global travel and potential bioterrorism, current thinkers seem
stymied by the task of creating an effective federal communicable
disease control policy. If, as Senator Bill Frist argues, "In the
war against bioterrorism, information is power," then historical
information about communicable disease control appears to be an
untapped resource.[2] This paper attempts to chart the history of
federal communicable disease control in a way that puts the
evolution of this broad power in context and illuminates some
lessons from our past that may help provide a safer future.

Origins of Federal Quarantine and Inspection
Laws

The connection between seafaring and the spread of
illness has been recognized at least since the Venetians imposed
the first known quarantine in the early 14th century.
The term itself comes from the Italian word for "forty", denoting
the number of days ships arriving from suspect ports were detained
before being allowed to disembark in Venice.[3] It is not surprising, then, that the towns of the
original American colonies began to impose quarantines as early as
1647, when the Massachusetts Bay Colony enacted the first
quarantine restriction in colonial America. This regulation
required the quarantine of ships from Barbados due to the threat of
plague.[4] The belief evidenced in this 1647 law, that
disease could be prevented by prohibitions against the entry of a
foreign source, underlies the paradigm of communicable disease
prevention that would dominate federal quarantine laws for the next
three centuries.

In 1662, the first land-based quarantine in the
future United States was instituted in the town of East Hampton,
Long Island. The entry in the Town Records for March 2, 1662
orders:

"...that no Indian shall come to towne into the
street after sufficient notice upon penalty of 5s. or be whipped
until they be free of the smallpoxe... and if any English or Indian
servant shall go to their wigwams they shall suffer the same
punishment."[5]

Though intended to prevent disease transmission
from a domestic (rather than foreign) source, this regulation
continues the pattern of concentrating on protecting a defined
community from a disease that threatens from outside that
community. Attempts to protect against smallpox recur throughout
the history of American quarantine, leading to a victorious period
of worldwide eradication as well as our current fears of the
disease as a potential terrorist weapon.

Following these first quarantines, other colonial
governments gradually instituted their own measures for preventing
the introduction of disease from without. At the turn of the
18th century, the predominant concern was about diseases
(primarily smallpox and yellow fever) coming in by sea from foreign
ports, rather than domestic sources.[6] A law enacted by Pennsylvania in 1700 is typical
of the quarantine provisions of this time, prohibiting "sickly
vessels coming into the government."[7] Though most colonies enacted quarantine laws,
there was no clear consensus as to which level of government would
have authority over this task; cities and other localities enacted
quarantine statutes as well.[8]

The Colonial Government of New York began the most
sophisticated formal quarantine system in the nation in 1754,
funding quarantine hospitals through a tax imposed on all seamen
and passengers entering at the port of New York.[9] This move was largely motivated by recurring
outbreaks of yellow fever which figured significantly in New York
and Philadelphia from 1723 to 1822.[10] While these sorts of quarantine measures seem
prudent and necessary, one cannot ignore a level of panic
surrounding the spread of contagious diseases. At the time, the
causes of yellow fever and smallpox were unknown, and public fear
abounded.[11] The yellow fever epidemic in Philadelphia in
the summer of 1793 exemplifies the fear prompted by that disease. A
month after the disease first appeared that year, Secretary of the
Treasury Oliver Wolcott visited the city, noting that "the streets
and roads leading from the city were crouded [sic] with families
flying in every direction for safety to the country."[12] By a month later, Wolcott wrote "the
apprehensiveness of the citizens cannot be increased; business is
in great measure abandoned; the true character of man is disclosed,
and he shows himself a weak, timid, desponding and selfish
being."[13] The citizens of New York were in a similar
state of panic that they might import the disease trampling
Philadelphia: "In New York bands of vigilantes were organized to
patrol the streets lest fugitives from Philadelphia slip into the
town by night,"[14] . Less intimidating measures were taken as
well; Boston held ships from Philadelphia for cleansing with
vinegar and gunpowder. Among those remaining in Philadelphia, some
chewed garlic all day, while even women and children smoked cigars
in the hopes of warding off disease through rumored
preventatives.[15]

The federal government first became involved in
quarantine in the 1790's, beginning with some halting first steps
at the periphery of a federal quarantine presence. In 1789, the
First Congress appointed a committee to draft and introduce a bill
to provide for the care of sick and disabled merchant seamen.
Though the bill did not survive committee, this was the first sign
of federal interest in regulating the health of the vessels coming
to and from our shores.[16] On June 9, 1794, Congress passed the first
federal law relative to quarantine, granting federal consent to the
state of Maryland's law imposing a duty on vessels coming into the
district of Baltimore from foreign ports in order to pay for a
health officer at the Port of Baltimore.[17] Prior to this, states had not been permitted to
charge duties on arriving ships for any reason. The Act of April 3,
1794 indirectly suggested a federal response to quarantine power,
by authorizing Congress to meet at a place other than the seat of
government when a "prevalence of contagious sickness"
existed.[18] It was not until 1796, however, that Congress
addressed the larger question of federal involvement in quarantine
directly. "An Act Relative to Quarantine," passed on May 27, 1796,
gave the President authority to direct the revenue officers and
officers commanding forts and revenue cutters to aid in the
execution of quarantine and in the execution of the health laws of
the states.[19] This first official move toward federal aid in
the execution of state quarantine laws laid a template for future
constructions of law that would cast the federal government in the
role of providing requested assistance, but not directing
action.

The 1798 "Act for the Relief of Sick and Disabled
Seamen" created an agency that would eventually be responsible for
providing this assistance – the Marine Hospital Service
(predecessor to the present Public Health Service). The Act
provided that the salaries of sailors be taxed to fund the
construction of marine hospitals and to provide medical care to
merchant seamen, creating what the National Institutes of Health
now refers to as "the first prepaid medical care plan in the United
States".[20] Because the Marine Hospital Service was created
to serve merchant seamen, a vital component of commerce, it was
housed in the Treasury Department.[21] Though the law did not explicitly direct the
agency to prevent the spread of contagious diseases, its goal of
creating federal medical resources to aid the health of those most
likely to carry diseases into the United States from overseas hints
at its later use for this purpose.[22]

Soon after creating the Marine Hospital Service,
Congress tasked the Treasury with the duty to observe and assist in
the quarantine laws of the states. On February 25, 1799, "An Act
Respecting Quarantine and Health Laws" replaced the Act of May
1796, reflecting a more developed notion of what was involved in
creating a federal quarantine institution.[23] The statute retained the model of federal
agency as assistant to state authorities, directing United States
officers to observe state quarantine and health laws, and
authorizing the Secretary of the Treasury to assist states in their
efforts to enforce those laws.[24] The language of the statute evinces that its
primary concern was disease borne on seafaring vessels, rather than
traveling over land; this reflects the emerging view of the time
that while general health regulations lay beyond federal purview,
federal involvement in health regulations relating to international
travel might be appropriate.

Aside from authorizing the federal government to
assist the states in enforcing their own quarantine laws, the 1799
Act contained a provision allowing the Secretary of the Treasury to
vary the regulations relative to the "entry and report" of vessels
and their cargoes. Specifically, the statute authorized the
Secretary:

"when a conformity to such quarantines and health
laws shall require it, and in respect to vessels which shall be
subject thereto, to prolong the terms limited for the entry of the
same, and the report or entry of their cargoes, and to vary or
dispense with any other regulations applicable to such reports or
entries."[25]

Though this appears to give the Secretary power to
depart from state laws and institute his own regulations, this
power extends only so far as the underlying state quarantine laws
allow. The statute only authorizes variations from regulations of
reports and entries if those regulations conflict with the
requirements of the state quarantine and health laws. Thus, this
statute does not actually authorize the federal government to make
any law relating to quarantine that would supercede state
quarantine laws.

The 1799 Act includes two other provisions that
reflect the early state of development of federal quarantine
powers. The first of these was a provision that reflected a
significant concern about state quarantine laws at the
time—that the protection of public health would become a
pretext for graft and economic protectionism. For this reason, the
statute orders that "...nothing herein shall enable any state to
collect a duty of tonnage or impost without the consent of the
Congress of the United States thereto,"[26] . This expresses Congress' clear desire for a
separation of powers that would require Congressional permission to
tax any incoming vessel (as was allowed in the case of the Port of
Baltimore in 1794). The other provision revealing the developing
concern about communicable disease at the time might be seen as the
first federal provision for public health emergencies. The Act
provides that in the case of "prevalence of any contagious or
epidemic disease" at a port, the Secretary of the Treasury could
order the removal of revenue officers, the President could order
the removal of public offices, the courts could decide to remove
themselves, and a district judge could order the removal of all
prisoners from that port to a safe location.[27] This provision also lays out the first clear
division of responsibility between government actors in the event
of a breakout of a dangerous disease.

The assignment of federal power to help enforce
state quarantine laws created some confusion as to whether this in
some way lent federal authority to state quarantine laws. The 1824
case of Gibbons v. Ogden illustrates some of the role
confusion raised by this melding of functions. In
Gibbons , the Supreme Court struck as
unconstitutional a New York law that granted exclusive navigation
rights to two individuals for the entire waters of New York. In
doing so, the Court rejected the State's argument that the federal
government's prior assistance in enforcing New York's quarantine
regulations signified federal sanction of those laws as consistent
with the Constitution: "Congress only directs officers of
government to obey state quarantine laws but does not pretend, or
attempt, to legalize them."[28] This firmly established that, although federal
powers would be used to help enforce state laws regarding maritime
travel, it would neither negate the commerce power nor federalize
state quarantine laws.

While the meaning of this federal aid was being
defined, Congress appropriated to the Secretary of the Treasury
greater power to implement it. Between 1832 and 1834, serious
outbreaks of cholera traveled up the Mississippi River from the
Gulf Coast, spreading that disease and the fear of it into areas
which had previously seemed safe from the reach of "coastal"
diseases.[29] In response to this epidemic, Congress passed
"An Act to Enforce Quarantine Regulations" on July 13, 1832,
empowering the Secretary of the Treasury to allocate ships and
officers to aid in the enforcement of state quarantine and health
laws.[30] This statute did not materially change the
powers of the federal government to interfere with quarantine laws,
maintaining the federal health role as assistant to state
authority. It did, however, materially increase the usefulness of
this power to the states and it increased the federal presence at
state ports.

Though the federal government and the states
clearly understood that the epidemic diseases of the time were
transported by boat, there was by no means a clear understanding of
their modes of transmission. One Senate report on quarantine in
1854 stated that cholera appeared to have no cause, but emerged at
random except for a possible correlation with poor sanitation. The
understanding of typhus (or "ship fever") was more colorful, if no
more advanced. The Senate Report identified the cause of typhus as
being a "poisonous vapor" particular to ships, which was made of a
combination of the "decomposition of bodily excretions" and
moisture from perspiration and breath.[31] Though people of the time did not understand
disease transmission, they were becoming all too familiar with the
consequences of epidemics. One particularly disastrous yellow fever
outbreak on Staten Island and Long Island, New York in 1856,
underscored the level of public fear engendered by the prevailing
contagious diseases of the time. Attributed to "lax enforcement of
quarantine laws", the 1856 New York outbreak caused over 500 cases
of yellow fever, and led angry locals to barricade the quarantine
station on Staten Island.[32] Though New York health authorities responded by
moving the quarantine station several miles away, the locals were
not pacified. When new yellow fever patients arrived the following
summer, an armed mob burned the quarantine hospital to the
ground.[33]

Post-Civil War Communicable Disease
Control:

The Fight Against Yellow Fever and the Acts of
1878-1879

The Civil War years did not weaken the nation's
quarantine abilities, but strengthened them through increased
appropriations and an influx of military medical officers who would
become, in effect, government doctors.[34] These expanded resources came largely in
response to cholera and yellow fever. Due to the prevalence of
cholera, in 1866, Congress passed a joint resolution authorizing
the Secretaries of War and Navy to place ships at the disposal of
quarantine officers at United States ports.[35] Though this action remained in effect for only
one year, it added to the gradual progress of increased federal
ability to aid in disease control. Another law passed in 1866,
however, contributed far more to federal quarantine power. The Act
of May 26, 1866 granted to the Secretary of the Treasury, for the
first time, the power to make its own regulations regarding
quarantine against cholera.[36] Though this grant of power was also a response
to a temporary epidemic expiring in one year, it broke trail into a
new area in which the federal government would not just assist, but
at times also direct, quarantine regulations. [37]

The recurrences of deadly epidemics (particularly
yellow fever) in the southern states in the mid-19th
century led the post-war Congress to concentrate federal quarantine
efforts in the South. On June 6, 1872, Congress passed a "Joint
Resolution Providing for a More Effective System of Quarantine on
the Southern and Gulf Coasts", which authorized the Secretary of
War to evaluate and rehaul southern states' quarantine policies in
light of the yellow fever threat.[38] The choice to locate this power with the
Secretary of War, rather than the usual seat of quarantine power
– the Secretary of the Treasury, requires explanation. This
provision does not represent a change in authority, but a
supplemental power to capitalize on military medical officers'
familiarity with Southern health conditions.[39] In addition, the assignment of this
responsibility to the Secretary of War reflected that much of the
Marine Hospital Service's own resources had been subsumed by the
war effort.[40]

The language of the statute itself shows an
interesting variation on the usual formula of directing federal
quarantine officers to aid in the enforcement of state laws.
Because of a dearth of organized quarantine systems in the south
(and a lack of state boards of health in southern states at this
time[41] ), the language directs army medical officers
to:

"...visit each town or port on the coast of the
Gulf of Mexico and the Atlantic coast, which is subject or liable
to invasions of yellow fever, and ...confer with the authorities of
such port or town, with reference to the establishment of a more
uniform and effective system of quarantine, and ...ascertain all
facts having reference to the outbreaks of this disease in such
ports or towns, and whether any system of quarantine is likely to
be effective in preventing invasions of yellow fever, and, if so,
what system will least interfere with the interests of commerce at
said ports..."[42]

Though the statute directs the federal medical
officer to advise, rather than direct, local authorities, it
clearly authorizes federal medical officers to do more than simply
help enforce local laws. This more intrusive role of the federal
medical officer may have been justified by the time limits of the
statute, which designed this action to end with a report on the
topics to the Secretary six months later.[43]

Despite sporadic attempts to use federal resources
to improve state and local quarantine systems throughout the
19th century, by 1875, the effect was seen as relatively
insignificant. One Public Health Service historian noted that "The
enforcement of quarantine regulations, inconsistent as they were
from locality to locality, was variable and often nonexistent. In
1875 [Supervising Surgeon General John Maynard] Woodworth
characterized the federal quarantine law as a 'dead
letter'."[44] Part of this lack of success resulted from the
requirement that federal medical officers wait for local
authorities to request assistance before intervening in quarantine
procedures. This impotence collided with the Surgeon General's
ambitious goals for the Marine Hospital Service (MHS). From the
beginning of his tenure, Woodworth aspired to use the MHS not only
for the care of merchant seamen, but to provide health services to
the entire nation. The predominance of epidemic outbreaks
(primarily cholera, smallpox, and yellow fever) led him to see the
quarantine power as central to achieving this goal of a more
universal health service. [45] Woodworth attempted to increase the MHS's role
in quarantine by issuing a memo to his medical officers that
defined their quarantine duties and ordered them to familiarize
themselves thoroughly with the local health laws at their ports,
and to obey these laws and "render prompt assistance" in their
enforcement when requested.[46]

At the same time that Woodworth was trying to
increase federal control over quarantine, an important and
connected move toward federalization in the area of immigration was
taking place. In 1875, the Supreme Court struck as unconstitutional
all state laws regarding foreign immigration, giving the federal
government sole authority to regulate immigration. This case,
Chy Lung v. Freeman et al. , involved a California
statute excluding certain aliens except upon payment of a bond. In
his majority opinion, Justice Miller held the statute to be
unconstitutional because it conflicted with the sole authority of
Congress to regulate the admission of aliens.[47] This ruling left the states with a gaping need
for federal assistance in dealing with the many services required
by immigration, including the task of protecting against the
contagious diseases some immigrants carried to their
shores.[48]

Woodworth continued his campaign to empower the
MHS's quarantine efforts at the International Medical Congress in
1876. At the conference, he argued for the need for a national
quarantine system, with a concentration on working toward
uniformity in the system. Woodworth's arguments were not aimed at
making it more difficult for vessels to dock at U.S. ports. On the
contrary, he believed that quarantine could become more predictable
and effective through a uniform system of: inspections of arriving
vessels, medical examinations of those on board, and shorter
required periods spent in quarantine detention. This last reform
was an attempt to end some ports' practice of detaining vessels
from infected ports for longer than the period of incubation of the
disease which was being contained. Woodward argued that once the
disease had run its course and was no longer contagious, there was
no reason for ships to remain in quarantine at tremendous cost to
their owners and crew.[49]

Though Woodworth's efforts did not meet with
immediate success, the next year brought events that helped advance
his cause. In the summer of 1877, a ruinous epidemic of yellow
fever spread up the Mississippi from New Orleans.[50] This pattern of yellow fever outbreaks,
spreading up through the southern states from New Orleans,
continued over the next year with disastrous consequences. The
epidemic of the following summer led to roughly 27,000 cases of
yellow fever and over 4,000 deaths in New Orleans, and killed
almost ten percent of the populations of Memphis and
Vicksburg.[51] Overall, the yellow fever epidemic that
traveled the Mississippi in 1878 took more than 100,000
victims.[52] The level of fear and devastation inherent in
this experience is hard for us to imagine today; entire towns along
the Mississippi were deserted as rumors of yellow fever surfaced in
the days prior to its actual arrival, and local citizens enforced
quarantines at the point of shotguns.[53] This panic, which made dealing with the
epidemic even more difficult than it would have otherwise been, is
understandable in light of the lack of available information about
what caused the disease. As a result, a commission appointed by
Congress after the 1878 outbreaks investigated the cause and
transmission of both yellow fever and cholera.[54] Even the best medical minds of the time were
unable to identify the true mode of transmission of yellow fever,
concluding only that further efforts should be directed toward
chemical disinfectants and that quarantine and sanitation played an
important role in disease control. As Geddes Smith wrote, yellow
fever presented a particularly difficult epidemiological conundrum:
"[A] disease which clearly was not transmitted directly from
person to person and which nevertheless spread from one place to
another with human travel was too puzzling to handle in any logical
way until, years later, the mosquito was identified as
middleman."[55]

The story of one yellow fever infected towboat, the
John D. Porter, reveals the inability of health officers to control
the spread of this epidemic. Originating in New Orleans, the Porter
set out for Pittsburgh with a string of barges, but had stopped as
early as Vicksburg to bury two crew members who had succumbed to
the disease. By the time the boat reached Memphis, soon after
losing another crew member to yellow fever, its reputation had
spread and the town prevented it from docking. When the boat
reached Cincinnati, after four more deaths, two MHS physicians
boarded the ship to care for the sick and attempt to control the
disease, to little avail. As the boat reached Gallopolis, Ohio,
those in the crew who were still physically able pushed past the
town's guards to flee the ship, and subsequently infected
thirty-one Gallopolis residents. "When the boat finally reached her
destination, it is recorded that 23 men had died on board and she
had distributed poison through a journey of more than 1,000
miles."[56] The inability of the two MHS physicians to keep
the Porter's crew from spreading disease to port town residents
only underscored the need for a more effective quarantine
power.

The yellow fever epidemic's effects on larger
cities like Memphis and New Orleans were no less catastrophic than
its effects on small towns like Gallopolis. In ten days,
twenty-five thousand people fled Memphis, and one third of the
remaining twenty thousand citizens succumbed to the disease. The
effects on commerce and trade were almost as devastating.
Communications and trade were stopped almost entirely throughout
the lower Mississippi Valley, and trains headed north were packed
full with fearful refugees. Meanwhile, travel between towns was
hampered by the many local quarantines which turned away newcomers
at the point of shotguns. The city of New Orleans estimated that it
lost $5,000,000 in commerce due to the 1878 epidemic.[57]

With the yellow fever tragedies came public and
political support for quarantine reform, culminating in the April
29, 1878 "Act to Prevent the Introduction of Contagious or
Infectious Diseases into the United States".[58] The bill was introduced by Congressman Julian
Hartridge of Georgia, reported out by the Committee on Interstate
and Foreign Commerce, and was sponsored in the Senate by Senator
Roscoe Conkling of New York.[59] There is little dispute that the bill was able
to pass due to a combination of public concern about the ongoing
yellow fever epidemic and the extensive efforts of Surgeon-General
Woodworth against opposition by merchants.[60] This Act created the Division of Quarantine
within the MHS, officially assigning federal quarantine
responsibility to that agency.[61] The Act decisively follows Dr. Woodworth's
pleas that the federal government be empowered to create
regulations of its own to counteract the problems caused by the
inconsistency of state regulations.[62] The new law also strengthened federal
quarantine authority by making the MHS the central agency with
which incoming vessels would have to deal. Section Two of the
statute directs:

"[W]henever any infectious or contagious disease
shall appear in any foreign port, or having on board goods or
passengers coming from any place or district infected with cholera
or yellow fever, ...bound for any port in the United States, the
consular officer, or other representative of the United States at
or nearest such foreign port shall immediately give information
thereof to the Supervising Surgeon-General of the Marine Hospital
Service..."[63]

This centralization of reporting to the MHS
strengthened its ability to monitor ships coming from infected
ports or bearing infected passengers. In doing so, Congress placed
the coordination of quarantine in federal hands, with the hopes of
solving interstate communication and enforcement problems. Instead
of serving merely as an invited helper to the states, the MHS was
now the central recipient of information from federal officers
abroad, possessing the power to inform and advise states regarding
potentially affected ports.[64]

In addition to shifting the structure of quarantine
coordination toward federalization, the 1878 Act also began to
shift regulatory control of the actual quarantine regulations to
the federal government. The Act authorizes the Surgeon-General to
create rules and regulations for the purpose of aiding in
quarantine enforcement, as long as those rules did not "conflict
with or impair any sanitary or quarantine laws or regulations of
any State or municipal authorities..."[65] The caveat that federal regulations must not
contradict state laws reflects the fundamental view that quarantine
and health regulation ought to remain a key state police power. In
some ways, the statute went even further than simply allowing the
Surgeon General to create regulations for MHS officers to follow;
it also authorized state and municipal health officers to "act as
officers or agents of the national quarantine system,"[66] . Putting the federal regulation provision
together with this provisions seems to result in the appropriation
of state officials for the enforcement of federal quarantine
regulations. The statute did provide, however, that "there shall be
no interference in any manner with any quarantine laws or
regulations as they now exist or may hereafter be adopted under
State laws."[67] Despite this limitation on the Surgeon
General's quarantine power, however, the new ability to create
regulations departed substantially from mere authorization to aid
in the enforcement of state laws.

The 1878 Act also enabled Surgeon-General Woodworth
to organize a yellow fever commission which studied the problem in
southern states, and changed the MHS from a collection of locally
controlled hospitals to a nationally coordinated and controlled
system: "The loosely connected aggregation of local appointee
physicians ...was ...converted into a homogeneous mobile medical
corps whose members were available for service in any part of the
country whenever directed."[68] Despite this bold improvement in federal
capability, the 1878 Act did not give the federal government
sufficient authority to create regulations for inspection and
disinfection of vessels. The inability to "interfere" or "conflict"
with state and municipal quarantine regulations tied the hands of
federal health officers too much to create a uniform system of
quarantine.[69] This limitation, combined with continuing
yellow fever epidemics, led Congress to take even further action,
creating the National Board of Health through the Act of March 3,
1879.[70] The National Board of Health would take the
place of the Marine Hospital Service with respect to quarantine and
inspection, relegating the MHS to the narrow mission of caring for
merchant seamen.[71] It seems more than coincidental that this
removal of power from the MHS came soon after the death of its most
powerful and successful proponent, Surgeon General John Maynard
Woodworth.[72] Though Woodworth's successor, Dr. John B.
Hamilton, was similarly committed to working toward an effective,
uniform quarantine system, the loss of a leader with experience
navigating the Service through such tumultuous times may have left
the MHS more politically vulnerable than in preceding years.
[73]

Other than changing the seat of federal quarantine
power, the Act of March 3, 1879 actually made little substantive
progress toward federalization of quarantine. However, the statute
did substantially alter the mechanics of this process, requiring
ships to present "certificates of health" from consular or medical
officers at the point of departure and from the health officer at
their point of entry. In order to implement this requirement, the
statute provided for medical officers to be assigned to foreign
ports at the consular offices in order to perform health
inspections.[74] This organization of information reporting
marked a significant improvement in the ability of health officers
to anticipate which foreign ports and ships might carry infection
and to prepare domestic ports for those threats. Toward this goal,
the statute directed the National Board of Health to submit weekly
reports on the "sanitary condition" of foreign and U.S.
ports.[75] Perhaps because it was created to solve the
seemingly finite problem of yellow fever, the National Board of
Health was authorized for only four years, expiring in March 2,
1883.[76] After this time, the MHS once again assumed
responsibility for national quarantine and public health, and began
to more fully implement the quarantine law of 1878.[77]

Quarantine procedure around this time was, not
surprisingly, directed at the control and prevention of yellow
fever, smallpox, and cholera. In general, when vessels arrived at
United States ports, they were required to anchor at a designated
location and were then boarded by the Medical Officer in Charge of
the quarantine station (or an assistant). Quarantine stations were
usually located at a distance from their ports, in response to
local opposition to having potentially infected ships near their
shores. The medical officer reviewed the ships documents to
determine where it had come from and at which ports it had stopped
along the way, and then examined the passengers and crew for signs
of the quarantinable diseases.[78] Ships that came from ports which were known to
be infected with yellow fever received more exacting treatment,
held for the complete period of incubation of the disease.
Similarly, if passengers or crew showed symptoms of either yellow
fever or smallpox, the ship and its passengers were detained in
quarantine facilities until the end of the disease's incubation
period. After this time, if the quarantine officer found the ship
to be free of disease, he would issue a "pratique", (i.e.
permission to enter the port) or a provisional pratique, which
conditioned entry upon some restriction (i.e. fumigation or
discharge of the cargo).[79] The job of the quarantine officer during this
time was a treacherous one, with a number of medical officers
contracting yellow fever each year.[80]

Interstate Control and Immigrant
Inspection

As the 1880's came to a close, the issue of
strengthening federal control over interstate quarantine kept
recurring with the emergence of unmanageable epidemics. In
September, 1888, Congress took a tentative step toward funding such
an expanse of federal power, appropriating by joint resolution
$200,000 for the purpose of suppressing "infection in interstate
commerce".[81] Though political support for making the actual
move toward authorizing federal control over interstate quarantine
was significant, Congress failed to pass "An Act to prevent the
introduction of contagious diseases from one State to another, and
for the punishment of certain offenses," which would have
authorized federal control over interstate quarantine.[82] Since the time was not yet ripe for
federalization, Congress instead took gradual steps to strengthen
federal control of quarantine. In 1888, Congress enacted "An Act to
Perfect the Quarantine Service of the United States," which
provided for penalties for violations of quarantine laws and
established new quarantine stations.[83] In addition, and in reaction to reports of
smallpox epidemics in Hong Kong, Congress authorized the
construction of a major quarantine station on California's Angel
Island.[84]

1890 finally brought the political impetus to pass
an interstate quarantine act, after years of flirting with this
power. With the scourge of yellow fever continuing through the
summer of 1889, it is not difficult to see why Congress determined
that this action was necessary.[85] The bill specifically authorized the Marine
Hospital Service to prevent the interstate transmission of cholera,
yellow fever, smallpox, and bubonic plague.[86] It further authorized the Surgeon General to
enact rules and regulations to this effect.[87] In addition to permitting previously unknown
federal power over interstate quarantine, Congress also soon gave
the federal government power over medical inspection of immigrants.
Though Congress had passed an act regarding immigration in 1882
providing for the exclusion of "convicts, lunatics, idiots, and
others unable to care for themselves," it was not until 1891 that
Congress provided for the exclusion of those with "loathsome or
dangerous contagious disease[s]".[88] The Act of March 3, 1891 mandated medical
inspection of immigrants at their ports of entry, and assigned that
task to the Marine Hospital Service.[89] In point of fact, the first medical inspection
immigrants of this era encountered was performed by ship-owning
companies, at which point some were excluded from boarding. The
final word, however was left to MHS officers at the ship's point of
entry to the United States.[90] The prudence of the Act, clearly aimed at
preventing the ingress of immigrants carrying yellow fever,
cholera, and plague, was deemed proved after a cholera epidemic
ravaged Europe and Asia the following year.[91]

The cholera epidemic of 1892 prompted Surgeon
General Walter Wyman to press his new powers into almost immediate
use. In July of 1892, Wyman prohibited vessels from certain
specified cholera-infected districts from entering without a
certificate of disinfection.[92] After learning that immigrants with cholera had
begun arriving in August of 1892, Wyman took further action by
prohibiting the importation of a widely-known carrier object of the
disease – rags.[93] The ban on rags coming from cholera infected
ports was absolute, and even those coming from ports not known to
be infected were required to carry a certificate by the consular
officer at the port of shipment stating that they had been
disinfected.[94]

These measures, however, were too timid to prevent
the immigration of cholera, and the public began to cry for a halt
to all immigration.[95] Though the Executive was not empowered to stop
immigration at the time, President Harrison and Surgeon General
Wyman sought a way to use quarantine laws to accomplish this
goal.[96] In Wyman's own words:

"In reading over the quarantine laws of the States,
...I found that every seaboard State had the right, under its laws,
to enforce a quarantine detention of at least twenty days...[and]
[u]nder the national quarantine act of April 19, 1878, the General
Government is authorized to aid State and local boards, and the
principle has bee announced by the highest legal authority that
while, under existing laws, the National Government might not break
down the quarantine barriers of a State, its power is
unquestionable to add to these barriers when it becomes
necessary."[97]

Using this power to enforce state quarantine laws,
the Surgeon General declared a twenty day quarantine of all ships,
with the full knowledge that the cost of the quarantine to
steamship companies would cause a twenty day halt to all
immigration.[98] Though the 1892 cholera epidemic caused the
deaths of roughly 80,000 in Persia and 300,000 in Russia, these
measures limited the scale of disaster in the United States to a
much more minor event.[99] Though it referred to a state law regarding
exclusion of certain immigrants, the case of Minneapolis,
Saint Paul v. Milner lent some support to the federal
government's laws restricting immigration and subjecting immigrants
to inspection and detention. The Milner court upheld
a state's power to detain even those passengers from uninfected
countries, concluding that "inconvenience resulting to emigrants
and travelers from being halted and subjected to examination and
detention at state lines is of trifling importance at a time when
every effort is required and is being put forth to prevent the
introduction and spread of pestilential and communicable
diseases."[100]

For those who were not prohibited from entry,
medical inspection began at Ellis Island on January 1, 1892. The
first immigrant to arrive at Ellis Island was fifteen-year-old
Annie Moore, whom the New York Times touted as a "rosy-cheeked
Irish girl". Pre-selected by immigration officers to be the
preeminent model of immigration inspection, Moore passed swiftly
through the inspection of MHS physicians.[101] The method of inspection at Ellis Island was
sometimes referred to as "The Line", as each intended immigrant
climbed a set of stairs, to be scrutinized by MHS physicians for
signs of excessive exhaustion, deformities, defective posture, or
other apparent irregularities. The most intimidating part of the
exam was usually the eye exam, which involved flipping the
immigrant's eyelids inside out in order to screen for trachoma, a
contagious disease which led to blindness.[102] The process of delousing also caused some
trauma to bewildered incomers, as they were asked to remove their
clothes. Even more disconcerting to some, if disease was detected,
the immigrant was marked with a letter symbolizing his disease and
placed in a wire mesh compartment "which bore too great a
resemblance to an animal pen or a jail cell."[103]

Though Miss Moore's passage through Ellis Island
was unchallenging, the medical exams tended to be more elaborate
for those passengers who traveled in the third class or steerage
class of their vessels.[104] A directive from the Secretary of the
Treasury to United States Customs officers actually formalized this
class discrepancy, and explained the reasons for it. The Secretary
argued that past experience had shown that passengers from steerage
class presented the greatest danger of infectious diseases, due
to:

"The crowding of immigrants to the extreme limits
of the steerage accommodations of many of the ships, the
considerable quantity and the character of their baggage and
personal effects, and the consequent difficulty of maintaining
those conditions of cleanliness and ventilation which are demanded
by sanitary laws."[105]

Since these conditions were not present among the
cabin passengers, the Treasury Secretary saw no need to perform
inspections of cabin passengers beyond those already being done by
the various local health authorities until 1893.[106]

Though the cabin versus steerage distinction is not
relevant to quarantine and inspection policy today, another
distinction among incoming passengers created in 1892 continues to
the present day. Under pressure from the Commissioner of
Immigration, the United States began to differentiate between
incoming passengers who intended to immigrate permanently and those
who merely intended to visit.[107] Though the language of the previous
regulation (prior to the differentiation between cabin and steerage
passengers) was quite clear in its direction to examine all
passengers, the Commissioner of Immigration wrote to the Secretary
of the Treasury:

"It is represented that you have informed steamship
companies that you will require personal examination of all cabin
passengers by a surgeon, boarding officer, and registry clerks.
This is not deemed necessary, and it is probable that you were
misunderstood....You will only detain for examination such
foreigners as you have reason to believe, from such examination or
from the passenger list, are removing to this country for permanent
residence."[108]

The Secretary of the Treasury implemented this
policy by presenting this letter itself as a circular to the
department, with no accompanying policy justification. Though it
follows logically that the longer an infected visitor remains in
the country, the more opportunities he or she will have to infect
others, infected temporary visitors certainly also present danger
to the public. It is interesting from a policy perspective that
this distinction was created by the immigration authority, rather
than a public health authority. This may lend credence to the
theory that the distinction is aimed at preventing the entrance of
people who were likely to become public charges, rather than those
who might spread disease.

Increased immigration and further spread of disease
from state to state led Congress to take further steps toward
quarantine federalization in 1893, with "An Act Granting Additional
Quarantine Powers and Imposing Additional Duties upon the
Marine-Hospital Service".[109] The bill included a requirement that all
vessels must obtain a "bill of health" from a consular or medical
officer of the United States at the port of departure, detailing
the sanitary history of the vessel and stating that it complies
with United States sanitation rules.[110] In addition, it required weekly reporting on
the sanitary conditions of U.S. and foreign ports.[111] Clearly building on Surgeon General Wyman's
immigration suspension in 1892, the statute authorized the
President to "prohibit, in whole or in part, the introduction of
persons and property from such countries or places as he shall
designate for such period of time as he may deem necessary" if he
perceived a serious danger of introduction of an infectious disease
from a foreign country.[112] The Act gave the federal government the
"predominant right of quarantine," imbuing the MHS with the
responsibility of approving state and local quarantine facilities
and revamping those that failed to meet federal standards. The
language of the statute also specified that the Secretary of the
Treasury was empowered to make regulations to improve quarantine
systems which he deemed to be insufficient.[113] This led the several states to phase out
their own quarantine activities over the following years and cede
yet more responsibility to the federal government.[114]

The plentiful legislative history related to this
statute provides insight into the debate surrounding federal
quarantine powers in the epidemic years of the late-19th
century. A Report of the Senate Committee on Epidemic Diseases
emphasized Congress intended to create "an effective and uniform
system of quarantine regulations vigorously enforced at all ports,"
and to "prevent the importation of ...diseases into one State from
another".[115] The committee concluded that some states had
insufficient quarantine procedures at their ports, and that this
presented a serious danger to the health of the nation: "[I]f a
single gate is left open to the introduction of such diseases the
whole country may suffer the disastrous consequences of fatal
epidemics."[116] The truth of this statement was clear from
previous experiences in which ships from infected ports had entered
the United States at smaller ports with less stringent quarantine
restrictions.[117] The only way to prevent this, according to
the report, was to create a "thorough system of national
quarantine".[118]

Naturally, some states resisted this encroachment
on their power. The opposition was by no means widespread, however;
epidemics in previous years had convinced many states that they
would rather have federal officers deal with this intractable
problem than have to handle it on their own. However, the committee
report noted that some state and local authorities strenuously
objected to interference in their quarantine systems by federal
authorities. Those who objected most strenuously tended to be those
states with the most effective and sophisticated systems of
quarantine – New York and New Orleans.[119] Believing that they could implement superior
quarantine systems to that of the federal government, these ports
conducted quarantine inspections of their own in addition to
federal inspections for decades to come.[120] This activity was consistent with the
language of the bill, that it should be enforced "in accordance
with such rules and regulations of State and municipal health
authorities as may be made in pursuance of or consistent with this
act."[121]

Congress used the Commerce Clause as the authority
for federal quarantine intervention, arguing that the powers in
this bill are clearly justified as regulations of foreign and
interstate commerce.[122] As precedent for this use of the Commerce
Clause, the committee report cited appropriations made for the
removal of "snags, bars, and other obstructions from the navigable
waters of the country," and for a federal system of lighthouses and
lifesaving services.[123] Since these powers also aimed to improve the
safety of trade between the United States and foreign nations, the
committee concluded that the federal quarantine regulations fell
under the same authorization.[124] The committee also emphasized that the
statute did not require any action from state authorities; state
officers could choose whether or not to enforce the federal
quarantine regulations. Of course, in the event that they failed to
enforce the federal regulations, the federal government would send
it own officers to do so. Nonetheless, the controversial element of
compulsion of state officials was absent.[125]

The Supreme Court passed upon the validity of
federal quarantine powers under the Commerce Clause and the
simultaneous power held by states to implement their own
quarantines in Bartlett v. Lockwood in 1896. The
Court held as unquestionable the "authority of Congress to
establish quarantine regulations and to protect the country as
respects its commerce from contagious and infectious
diseases,"[126] . It also, however, recognized that this
federal power did not invalidate state laws relating to the same
policy domain, citing Congress's decision "in view of the different
requirements of different climates and localities and of the
difficulty of framing general law upon the subject, ...to permit
the several States to regulate the matter of protecting the public
health as to themselves seemed best."[127] The Court thus seemed to view the federal
appropriation of a power which had traditionally belonged to the
states as justified under the Commerce Clause. Another case before
the court in 1896 presented the more pointed question of whether
state or federal laws would prevail in the case of conflict, when
the federal law was enacted under the authority of the Commerce
Clause and the state law enacted for the purpose of regulating
health. In Hennington v. Georgia , Justice Harlan
delivered the opinion of the court:

"If the inspection, quarantine, or health laws of a
State, passed under its reserved power to provide for the health,
comfort, safety of its people, come into conflict with an act of
Congress, passed under its power to regulate interstate and foreign
commerce, such local regulations, to the extent of the conflict,
must give way in order that the supreme law of the land—an
act of Congress passed in pursuance of the Constitution—may
have unobstructed operation."[128]

This ruling left little question that Congress
could enact quarantine laws and the Surgeon General could enforce
them even if those laws conflicted with state quarantine laws.

The 1893 Act had to avoid not only Constitutional
and political pitfalls from the states' rights side of the issue,
but also opposition from those who wanted a more comprehensive
federal public health organization. Many medical associations and
health officials at the time supported the resurrection of the
National Board of Health, in a more potent form.[129] The committee itself expressed sympathy with
this goal, stating that "a national board of health (in the
Treasury Department), composed of sanitary scientists, should be
established and maintained."[130] The Senate Committee on Epidemic Diseases,
however, presented the housing of this power with the Marine
Hospital Service as a necessary compromise since most in Congress
would not support the recreation of the National Board of Health.
The importance of having some federal authority with the power to
implement a national uniform system of quarantine was too important
to risk being tied to such a controversial measure: "These powers
are ...not only important, but absolutely necessary to the security
of this country from the importation of contagious and infectious
disease."[131]

The 1893 Act's passage allowed the Surgeon General
to establish a system of quarantine regulations and to assemble and
train a group of medical officers as experts in the control of
epidemics. One of the first successes to result from this power
came in response to a smallpox outbreak in Eagle Pass, Texas, in
July of 1895. The victims of the epidemic were a group of 300
African-American agricultural workers from Alabama and Georgia who
had contracted smallpox in Mexico, where they had been lured by the
false promise of owning land. The people of Eagle Pass responded to
this group with hostility and avoidance, due to past experiences
with epidemics introduced by migrating agricultural workers. State
efforts to deal with the outbreak were inadequate; no one created a
registry of the infected and there was no organized effort to
separate the sick from the well. As some of the victims began to
die, the lack of state control allowed the infected men to leave
the area out of fear that they would meet the same fate.[132] Once the situation became known to federal
officials, Surgeon General Wyman assumed control of the situation
by appointing Dr. Rosenau, a MHS officer, and employing twenty
guards to organize separate camps for the sick men and the
apparently well men. After this action was taken, no additional
cases of smallpox occurred, and two-thirds of the 178 men who had
already been infected survived the epidemic. [133]

The new provisions for overseas medical inspections
at foreign ports of departure appeared to confer benefits not only
to the Americans they were designed to protect, but also for the
foreigners traveling on those ships. One anecdote about a cholera
incident in 1893 illustrates this point. In the late summer of
1893, eight ships departed from Naples, Italy; four were headed to
New York and four to South American ports. At the time of the
ships' departure, Naples had not been identified as a
cholera-infected port, but the disease was confirmed at the port
three days after they had set sail. Because of the new
pre-departure inspection requirement, the four ships destined for
New York were inspected prior to departure, thoroughly cleaned, and
their passengers were vaccinated. Aboard the ships sailing to New
York, three cases of cholera occurred, causing the ship to be
quarantined for five days (the incubation period of cholera) prior
to docking. By contrast, the four ships headed to South America had
undergone no such inspection and subsequent cleaning, and four
hundred and fifty-four of their passengers died en route.[134]

As had occurred in the past, as soon as the Marine
Hospital Service gained increased quarantine powers, it also found
itself engaged in a turf war. In March of 1894, Surgeon General
Wyman defended against an attempt to shift federal quarantine power
to a new bureau of public health and advisory council (comprised of
one representative from each state) to be housed in the Department
of the Interior.[135] The proposed change would not remove the
MHS's responsibility for enforcing quarantine laws, but would take
away the agency's rulemaking power. Though Wyman's motivation to
resist this move likely stemmed from his intense loyalty to the MHS
and a belief that it was the most able agency in dealing with
national quarantine, the arguments he (along with others) used to
defeat this attempted change provide insight into the legal and
policy questions surrounding national quarantine at the time.
Wyman's most obvious argument was that the MHS had the most
experience in dealing with quarantine and inspection, and was
therefore the best-suited agency to wield this power.[136]

Wyman also argued that the MHS should retain
national quarantine rulemaking power because there were practical
advantages to having both rulemaking and enforcement powers housed
in the same agency:

"In the proposed scheme of having one Department
make the rules and another execute them. I can readily see the
possibilities of clash, the shifting of responsibility from one to
the other, and crimination and recrimination after the resultant
disaster.... The proposed law would make the Marine-Hospital Corps
simply a hewer of wood and a drawer of water,"[137] .

Separating the rulemaking power from the
enforcement power would also undermine the effectiveness of a
national quarantine body in the case of emergency. With the MHS
holding both powers, argued Wyman, the Surgeon General could
implement new quarantine regulations as soon as the insufficiency
of a local system was identified. Wyman noted that the usual
characteristics of epidemics required immediate implementation of
new regulations and that "every epidemic is apt to produce new
conditions and to demand some variation in suppressive
measures."[138] Wyman argued that in a time of cholera
threats from Europe, thwarting the federal government's ability to
react quickly to changing circumstances would be obviously bad
public health policy.[139]

Wyman's argument for maintaining the quarantine
power in the Secretary of the Treasury rather than in the
Department of the Interior melded institutional competence with the
constitutional basis for the quarantine power. He argued that
maritime quarantine related to commerce and was thus tied closely
to shipping laws, the customs service, and immigrant inspection,
the regulations for which were all administered by the Treasury
Department. In this way, housing the quarantine power in the
Department of the Interior would lead to "two heads of large
departments of the Government attempting to manage subtle affairs
upon a big ocean vessel arriving at an American seaport."[140] Further, removing the quarantine power from
the Department of the Treasury would take it further away from its
Constitutional roots in the power to regulate commerce, generally
the purview of the Treasury.[141]

Though Surgeon General Wyman succeeded in his
struggle to retain control of federal quarantine powers in 1894,
that struggle resurfaced repeatedly in the years that followed. One
attempt in 1898 to increase the quarantine power of the Marine
Hospital Service was defeated by these efforts. The proposed bill
attempted to remove the complementary relationship between federal
and state and local quarantine laws in favor of a supreme federal
quarantine law that would make quarantine policies truly uniform
across the states. Some of the most virulent opponents to this
measure were the health officers of the state of New York. New York
medical officer Dr. A.H. Doty particularly objected to the
"autocratic" power the bill would give the Surgeon General, and
argued that the power to make quarantine regulations should be held
by a panel of health officers representing each state rather than
by this one man.[142] Doty's institutional competence argument had
two prongs to it. First, he argued that the MHS was not well-suited
to the task of acting as a health department for the nation,
stressing that it was created for the care of "disabled seamen, and
since that time nothing has been changed of the
management."[143] Second, he argued that state health officers
were better able to make quarantine regulations because of their
better understanding of the local variations in climatic conditions
and shipping.[144]

Doty did not argue for local control of quarantine,
however, but only for state control, blaming the shotgun quarantine
fiascoes of the recent yellow fever epidemics on "differences in
local health officers" rather than the inadequate efforts of state
health officers.[145] He later stated that the refusals by state
and municipal health officers to follow prudent federal quarantine
regulations that had happened in the past would not occur in the
future: "I do not think the present day, with the light we have in
the science of disinfection and bacteriology, that there will be
ever a State or municipal authority which will openly defy or
decline to do work properly."[146] Doty dismissed the past refusals to take
proper quarantine measures as the result of ultra-rapid
technological progress which outpaced the knowledge and beliefs of
local medical officers, and predicted that such a rapid advance
would not take place again.[147] This notion that the scientific knowledge of
one's own day represents the ultimate state of enlightenment
repeats itself throughout the history of American public
health.

Dr. H.B. Horlbeck, health officer at Charleston,
South Carolina, argued against increased national government power
on the that such a power would interfere with fundamental states'
rights. To Horlbeck, state control of health matters was the "very
foundation stone of our civilization," embodying the duty of a
community to care for the health of its own people. It is not
difficult to see that any meddling with this most classic of state
police powers would prompt such a visceral reaction; the power to
control quarantine is, in essence, the ability to control the
threats visited upon one's own body. The proposed bill, according
to Dr. Joseph Y. Porter, State Health Officer of Florida, would
remove from cities and states the ability to protect themselves
against disease as they saw fit, and give the Marine-Hospital
Service undue power: "[I]s the General Government preparing for the
mustering and maintenance of an expensive local health
police—an army of sanitarians that, like the locusts in the
field, eat up our substance and usurp our liberties?"[148]

Though arguments about federal overreaching sounded
loudly, the need for a uniform quarantine system had yet more
support. The proposed compromise between the goals of respecting
states' rights and implementing an effective quarantine system, the
national board of health consisting of representatives from each
state, was thought to be Constitutionally untenable. Because
federal quarantine power found its source in the Commerce Clause,
it must be administered by a federal agency tasked with the
regulation of commerce.[149] It is difficult to overestimate the federal
government's fear of stepping into a health regulatory role outside
that of that related to commerce. The Chairman of the House
Committee on Interstate and Foreign Commerce reminded a witness:
"You must remember this very difficulty: There are many gentlemen
who insist that the Government has no business at all in these
matters outside of its control over interstate and foreign
commerce."[150]

If this possible constitutional problem did not
eliminate the chances of the advisory board option, Surgeon General
Wyman argued convincingly against the appropriateness of a
democratic body making quarantine regulations, noting that
political self-interest would lead to decisions contrary to the
interests of both public health and commerce: "Would not some of
the Northern States be benefited commercially by an unnecessary
long detention of vessels arriving at these Southern
ports?"[151] Further, Wyman argued that the desire of
states to operate their own quarantine systems was motivated more
by profit than by public health concerns. State-imposed quarantine
fees had resulted in millions of dollars in unnecessary losses to
the trade in commerce.[152] Somewhat surprisingly, the Surgeon General
enjoyed significant support from many southern health officers for
greater federal control of the system. Representatives of the
Southern Medical Association and the State Boards of Health of
Georgia and Mississippi testified solidly in support of
strengthening the Marine Hospital Service's quarantine
power.[153] Despite this support, however, and a positive
report out of committee, the bill to increase quarantine powers
within the MHS was defeated. The buffeting dissents from the
states' rights defenders and from those who wished to reestablish a
national board of health left the bill just shy of its required
votes.

States Rights at the Turn of the Century and
the Bubonic Plague

The major legal issue involved in federal
quarantine at the end of the nineteenth century was the increase in
federal power at the expense of state quarantine autonomy, prompted
by a backdrop of yellow fever epidemics. By the early twentieth
century, concerns shifted toward allegations of discrimination
against certain groups of immigrants, with the backdrop of the
threat of plague.[154] An incident in January of 1900 foreshadowed
the predominance of plague imported from the Far East as a
quarantine problem in the early 1900's. The Nanyo Maru , a
Japanese steamship, sailed into Port Townsend, Washington on
January 31, 1900, carrying with it a rumor of illness. The one
death which occurred during the standard time of detention at the
quarantine station was attributed to beriberi, but the federal
quarantine officer who inspected the ship rejected this diagnosis
and forced a longer quarantine until a bacteriological examination
of the deceased's tissues could confirm or disprove the presence of
another disease. The test results confirmed the officer's suspicion
of plague, and time revealed that seventeen of the ship's
passengers carried the disease. The quarantine officer recalled his
fear as he performed the autopsies of the three men on board who
perished from the plague, noting that rubber gloves were not among
the resources allotted him.[155]

The incident on the Nanyo Maru must have
seemed a warning to quarantine officers, and its portent was borne
out less than two months later when bubonic plague first took hold
on the North American continent. On March 6, 1900, the body of a
Chinese immigrant was found dead in San Francisco's Chinatown. The
San Francisco Board of Health determined that the unfortunate man
had died of plague and instituted a quarantine of an area the size
of twelve city blocks.[156] The diagnosis of plague was rejected,
however, by city officials, and the Board of Health sought support
in its diagnosis from the Marine Hospital Service. Dr. Joseph
Kinyoun came to San Francisco to examine the body, and determined
that the disease proved bacteriologically to be bubonic
plague.[157] Following this confirmation, the MHS carried
out quarantine measures in San Francisco from March until June of
1900, including disinfection and fumigation of ships at the city's
harbor and inspection of trains at its borders.[158] Despite the confirmed diagnosis, however, the
people of San Francisco strenuously protested the quarantine. Even
the Governor of California denied the presence of plague, and by
June of 1900 state opposition led to an end of federal involvement
for over six months.[159] Indeed, almost every newspaper in the city
vilified the City Board of Health, Dr. Kinyoun, and San Francisco's
mayor for implementing the quarantine, one terming them the
"perpetrators of the greatest crime that has ever been committed
against the city".[160]

Though it is easy to understand why one might
resist believing that one's city was infested with plague, it is
more difficult to understand why the protestors might have thought
the Board of Health and MHS would fabricate the disease. The
roughly 20,000 Chinese-American residents of San Francisco clearly
thought the quarantine was motivated by the anti-Chinese sentiment
present in the city at the time.[161] In addition to this group, however, the
business community in and near Chinatown also objected to the
quarantine and diagnosis of plague on the grounds that it was bad
for business. This mistrust of health officers seriously hampered
their efforts to prevent the spread of plague for the rest of the
year, resulting in 122 deaths. Attempting to prove to San
Franciscans that the presence of plague was real, the Surgeon
General assembled a special commission of prestigious university
medical professors to investigate. Their findings, combined with
the increasingly undeniable reports of deaths from the disease,
finally convinced all local physicians and enabled city and federal
health officers to take more effective action. A year after plague
was first discovered in San Francisco, the Governor of California,
under pressure from state health officers and neighboring states,
finally requested that the federal government re-initiate
comprehensive fumigation and sterilization programs.[162]

The lesson of the plague of 1900 had been
well-learned by the time of the next outbreak in San Francisco.
After the great earthquake of 1906, the upheaval of buildings led
rats to scatter out into the city, carrying plague with them. In
the years since the last epidemic, the scientific community had
concluded that rats themselves were the source of the problem, and
that human-to-human transfer of the disease was unlikely.[163] Because of this discovery, public health
officials' first response to the disease was to quarantine rats,
rather than people, and to conduct extensive sanitation and
disinfection programs throughout the city.[164] This time, the people of San Francisco
welcomed federal health officers into the city, and admitted the
presence of the disease when it was diagnosed. The federal health
officer assigned to direct the disease-control efforts, Dr. Rupert
Blue, became an icon rather than a villain: "The name of Dr. Rupert
Blue came to be a household word that was regarded almost with
reverence."[165] Six months after the start of the 1907
outbreak, it ended in a celebration among San Franciscans, their
city health officers, and the federal health officers involved,
including a banquet held in the main streets of the city "to
emphasize that San Francisco was now so clean that one could eat a
meal in the street."[166]

Congress took action in response to the San
Francisco plague fiasco of 1900, passing legislation which enabled
federal officers to enforce quarantines without deference to state
health laws. The Act of March 3, 1901 amended the Act of February
15, 1893 by authorizing the Surgeon General to mark quarantine
boundaries and providing penalties for vessels that disregarded
those boundaries.[167] Further, after the outbreak of yellow fever
in New Orleans in 1905, Congress strengthened federal quarantine
power in the Act of 1906. The Act authorized the Secretary of the
Treasury to manage all quarantine stations created by the federal
government (nearly all quarantine stations at the time) and to
choose and acquire new quarantine sites as he deemed
necessary.[168] This law also enabled the federal government
to assume control over those quarantine stations which were
voluntarily handed over by local authorities. Each state gradually
found the local operation of quarantine stations to be more trouble
than it was worth, and by 1921 the federal government controlled
every quarantine station in the United States.[169]

Health Officer as Immigration
Gatekeeper

The gradual increases during the late
19th and early 20th century in federal
quarantine power as applied to immigrants sometimes presented
health officers with the power to implement political interests
other than those of public health. One cannot deny some aspect of
heroism embodied by the medical officers who put themselves on the
front lines of contagious diseases in the hopes of protecting their
fellow citizens. The self-image of Public Health Service[170] and state health officers was that of "the
public health officer [who] tries to block the roads by which
disease reaches his people. He is a 'detective,' a 'federal agent,'
employed in the interest of national health."[171] However, the goal of communicable disease
prevention often seemed to coincide with the goal of preventing
immigration, forcing Public Health Service (PHS) physicians to try
to unravel these two aims, at to refuse to implement those
regulations and rules that seemed more hostile to the immigrants
themselves than to their possible illnesses. One such law, passed
by Congress in 1907, empowered health officers to state on an
immigrant's medical certificate whether the immigrant had an
illness (non-communicable) or deformity which might render him or
her "likely to become a public charge".[172] Not willing to become mere tools of
immigration policy, the health officers simply refused to make such
entries, reporting only on the significant communicable diseases
they detected.[173]

Neither were health officers particularly concerned
with easing immigration, often oblivious to the feelings of those
they inspected. Alan Kraut, in his book Silent Menace ,
articulates this complex role:

"These proud, uniformed agents of the United States
government saw Ellis Island's ornate turrets as towers of vigilance
from which they dutifully guarded their country against disease and
debility. Those were the enemies, not the immigrants
themselves...Largely unaware that immigrants found the Ellis Island
inspection daunting, officials saw their task not as one of making
the process more humane but more effective and evenhanded....They
were acutely aware of refusing to permit an ever-louder chorus of
restrictionists from influencing their medical diagnoses, even if
those diagnoses were from time to time unconsciously shaped by
their own ethnic biases."[174]

Even removing the pressures to use their medical
inspection powers as a tool to prevent immigration, these federal
medical officers faced a more basic internal conflict between their
roles as inspectors and their training and professional duty as
physicians. Necessarily, they could not treat every illness
presented to them by the many immigrants moving past them each day,
and were forced to make complicated judgment calls each day,
"navigating between their medical oath to minister unto the
individual and their statutory responsibility to guard the health
of the public at large."[175]

The fact that immigrants who came through the
Canadian border faced fewer obstacles than those from other
countries implied to some that the federal medical authorities'
ethnic biases influenced their medical scrutiny.[176] At the time, those most suspected of carrying
contagious diseases were southern Europeans, Russians, Asians, and
Mexicans, while the immigrants who came through the Michigan border
from Canada were generally the less-suspect northern
Europeans.[177] Though this ethnic preference probably played
some role in the lenience of Canadian border inspections,
legitimate policy reasons could explain the difference as well. For
instance, most immigrants coming in through Michigan had already
been inspected when they came by boat initially to American ports;
as a result, the Michigan point of entry tended to be free of the
diseases that racked other American ports. The cooperation of
Canadian health officers and similarities between the Canadian and
U.S. quarantine systems also helped create a perception that
immigrants crossing the Michigan border presented less of a threat.
[178]

The more typical medical inspection experience was
that of the immigrants who entered through Ellis Island. In 1911, a
year of high immigration, Ellis Island physicians examined 749,642
immigrants. Of this total, 16,910 were certified as having physical
or mental defects; among these, 1,363 were rejected for having
"loathsome or dangerous contagious diseases". The proportion of
immigrants rejected for reasons of disease at Ellis Island was
representative of the rest of the country. During the peak
immigration era from 1890 to 1924, the proportion of immigrants
rejected for health reasons never exceeded three percent, with an
average of less than one percent over the entire period.[179] Because of the high numbers of immigrants
passing through inspection points during this period, the
physicians had to perform their duties extremely quickly. The
skills developed in spotting disease during a person's brief walk
through "the line," could be impressive. One PHS physician who
served as an inspector at Ellis Island recalled the diagnostic
feats of his chief medical officer, Dr. John Billings: "A German
lady was in the line and he took one look at her and said,
Nehmen Sie die Parucke Ab , meaning take off the wig, which
we had not noticed, and were astounded to see a totally bald lady
who had had favus."[180] Despite such examples of professional
expertise, some medical officers conducted themselves in less than
respectable ways, taking money from immigrants in exchange for
false naturalization papers. When Theodore Roosevelt took office in
1901, he set about curbing corruption on Ellis Island by appointing
William Williams as Chief Medical Officer. Williams instituted an
anti-corruption program of sending in agents posing as immigrants
to root out dishonest officers.[181]

Some of the diseases for which immigrants were
excluded during that time, like favus, were far less menacing than
those which had figured prominently in American quarantine
history.[182] The most common disease diagnosed at Ellis
Island, by far, was trachoma, which accounted for 85.6 percent of
the total diagnoses of contagious diseases.[183] Trachoma is a contagious disease of the
eyelid which causes inflammation of the conjunctiva and painful
"granulation" of the eyelids. At the time, the disease could lead
to scarring of the cornea and subsequent blindness.[184] Because physicians encountered the disease
almost exclusively at Ellis Island, they assumed that it was not
indigenous, until it appeared in Minnesota among the Native
American population. Despite the knowledge that it was not
imported, trachoma remained on the list of excludable diseases for
many years.[185]

The quarantine and immigration station at Angel
Island, California caused considerable controversy over the
diseases for which it excluded immigrants. Angel Island, the West
Coast Ellis Island, began to be used as an immigration station in
1910.[186] In its first year of operation, the station
saw the medical inspection of over 11,000 immigrants, and by 1920
reached a high of 25,000. The percentage of excluded immigrants at
Angel Island was far higher than at Ellis Island – between
ten to fifteen percent.[187] The Chinese government and the
Chinese-American community believed that this high statistic was
due largely to the unjust exclusion of Asian immigrants with
treatable diseases which were more prevalent among Asian
immigrants.[188]

Based on the belief that the exclusion of
immigrants with liver served as a mere pretext for the exclusion of
Asians, one Chinese immigrant appealed the decision to exclude him
based on this diagnosis. Liang Buck Chew was a Chinese citizen who
had resided in the United States for several years before making a
visit to his family back home. Upon his return, medical inspectors
excluded him based on a diagnosis of clonorchiasis (also called
"fluke worm of the liver"), then considered a "dangerous contagious
disease.[189] Chew brought suit while being held for
deportation. Chew argued that clonorchiasis is not a "contagious"
disease within the meaning of the statute, because it cannot be
transmitted from person to person, but must pass through two animal
hosts before becoming a threat to man and is only acquired by
eating undercooked fish. Because the disease was unlikely to be
transmitted from the infected person to others, argued Chew, it was
not a rational basis for exclusion.[190]

Though the Massachusetts district court agreed with
Chew that "there remains a good deal of doubt whether clonorchiasis
can reasonably be found to be a dangerous contagious disease in
this country," it ruled in favor of the federal
government.[191] Though the court declined to accept the
government's argument that medical officer's decisions were per se
unreviewable, it gave broad deference to the "reasonableness" of
those determinations.[192] Noting that the Surgeon General believed the
necessary hosts for clonorchiasis to be present in United States
waters, he accepted the contention that the disease was
transmissible as "reasonable".[193] Because of the several host steps that must
be encountered in order to transmit the disease, however, the
question still remained as to whether the disease was "contagious".
In answering this question, the opinion set a standard for great
deference to the judgment of PHS officers:

"The statute in question, having been passed for
the protection of the public health, should receive a liberal
interpretation in aid of its obvious purpose. The underlying
intention of it is to establish safeguards against the introduction
into this country by alien immigrants of dangerous diseases, which
might spread and do harm here. Certain diseases of which this would
be true – e.g. yellow fever – are not contagious in the
strict sense of the word. But they must be within the intended
scope of the act."[194]

The court's concern that a narrow definition of
"contagious" would disable the Surgeon General's authority over the
control of yellow fever is clear, and that disease was still fresh
in the American memory at the time of the case. After this ruling,
clonorchiasis remained an excludable disease until 1927, when a
Chinese-American physician, Dr. Fred Lam, persuaded the Surgeon
General that the disease did not threaten the United
States.[195]

The broad deference given to PHS officers in
deciding on medical exclusions did not shrink in the following
years. In 1938, the Southern District of New York granted almost
absolute deference to a PHS officer's decision to exclude a
temporary visitor from Europe on the grounds that she was infected
with ringworm of the toenails.[196] The court did not reject the petitioner's
argument that "ringworm of the nails was comparable to the
condition called 'athlete's foot'" and was therefore not properly
within the definition of a "dangerous or loathsome" disease.
Nonetheless, it upheld the medical officer's decision, showing
complete deference to the Surgeon General's judgment in deciding
which diseases would suffice to exclude an immigrant.[197] In United States ex re. Siegel v.
Shinnick , a 1963 case involving the quarantine detention
of a visitor from Sweden, the Eastern District of New York
reaffirmed this deference yet again. In this case, a PHS officer
detained the Swedish traveler on the basis of a World Health
Organization declaration that Stockholm (where the detainee had
visited prior to her arrival in the United States) was "infected"
with smallpox.[198] Because Mrs. Siegel did not present a valid
certificate of vaccination of smallpox, the medical officer
detained her at the PHS hospital at Stapleton, Staten Island for
the fourteen day period of incubation.[199] Mrs. Siegel's daughter argued that she had
only been in Stockholm from July 21 through 25, while the last case
of smallpox in Stockholm had occurred on June 22. Nonetheless, the
court concluded:

"It is idle and dangerous to suggest that private
judgment or judicial ipse dixit can, acting on the one datum of the
date June 22 as the last identified and reported case, undertake to
supercede the continuing declaration of the interested territorial
health administration that Stockholm is still a small pox infected
local area."[200]

Despite the lack of evidence showing that Mrs.
Siegel had been exposed to smallpox, the court deferred to the PHS
officer's judgment that the risk of her exposure was significant,
and held that the decision to detain her was neither arbitrary nor
discriminatory.[201]

After the end of World War I in 1918, the influx of
passengers from Europe increased dramatically and presented a new
level of medical danger. In response to disastrous epidemics of
typhus in parts of Europe, the PHS stationed officers at European
ports to oversee disease-control measures there. At the time,
shipowners were required to establish sanitation and disinfection
facilities, with PHS officers monitoring their procedures. When, as
happened from time to time, European governments interfered with or
prevented the United States' medical officers from performing their
duties, the United States responded by detaining the offending
country's ships at our quarantine stations for the entire
incubation period of the suspected disease, and passed that
significant cost on to the foreign shipowners. The United States
government only had to take this action a few times before foreign
governments agreed to comply with PHS inspections at their ports.
In the end, the effort was successful; typhus never made it past
these inspection points into the United States.[202]

The influx of travelers and immigrants from Europe
in the post-WWI period led to the construction and expansion of new
quarantine and inspection stations. The station at Leading Point,
in Baltimore, Maryland, was typical of the smaller stations created
at that time. Like the medical officers working at stations at
Ellis Island and Angel Island, the medical officers of these
smaller stations lived at their quarantine stations. Unlike those
at the larger stations, however, they inspected a less diverse and
smaller set of passengers, allowing them to use the stations for
domestic quarantine purposes as well.[203] At the Baltimore station, in fact, the
majority of quarantine patients were local residents who had been
diagnosed with smallpox.[204]

During this period, the Surgeon General instituted
two other policy changes regarding the inspection of incoming ships
and their passengers. First, the government promulgated a list of
"dangerous contagious diseases" which, if present at a ship's port
of origin or on the ship itself, would require great scrutiny by
quarantine inspectors. If one of the diseases was present on board,
all passengers were detained at the quarantine hospital and the
ship was disinfected and fumigated while flying the yellow flag
which symbolized quarantine. The "dangerous contagious diseases"
listed during this time included: yellow fever, smallpox, plague,
cholera, leprosy, anthrax, and typhus.[205]

The other major policy change which took place
during this time commenced in 1924, when Congress provided for a
system of overseas medical inspection of immigrants prior to their
departure for the United States. The Act of 1924 required that each
immigrant obtain a statement from a local physician testifying to
his or her health.[206] The measure attempted to prevent situations
in which immigrants made the costly and somewhat hazardous trip to
the United States only to find out that they would be forced to
return for medical reasons.[207] The validity of these statements, however,
proved unreliable, and Surgeon General Cumming soon recommended a
different approach. In 1925, the United States government began
performing medical examinations of prospective immigrants abroad,
first experimenting with a pilot program in Britain, and then
expanding the service to all major foreign ports. Though a clean
bill of health at the port of departure did not guarantee an
immigrant's entry into the United States, it did make the
immigration process more humane.[208]

Resource Struggles and the Advent of Air
Travel

The increased quarantine and inspection duties
which resulted from the increased volume of immigrants and
travelers strained the PHS's lagging resources. In the mid- to
late-1920's, the PHS consisted of about 180 commissioned officers,
including those employed in emergencies and those assigned at ports
overseas; those assigned to ports in Europe alone comprised sixteen
percent of the regular commissioned corps.[209] Considering these numbers, one recognizes
that each outbreak of disease imposed a serious strain on the
agency's capacities. For instance, when the 1927 flood in the
Mississippi Valley required twenty PHS officers to provide disaster
relief medical services, that occupied over thirteen percent of all
PHS medical officers stationed in the United States. In partial
response to this strain on resources, the PHS began to allow "radio
pratique" on a limited basis in 1937. "Radio pratique" is the
process by which a quarantine station issued permission to enter a
port without inspection, based on the belief that the vessel posed
little threat of disease. The policy in the late 1930's at the Port
of New York (the first port at which radio pratique was
implemented) allowed radio pratique for only those ships which
carried a certified physician on board.[210] This practice gradually expanded throughout
the following decades, as resources remained small relative to the
agency's responsibilities. One PHS historian notes that the new
responsibilities in the 1920's and 1930's "spread the commissioned
corps so thin as to almost reach the breaking point."[211]

The advent of air travel in the post-WWI years led
to the Air Commerce Act of 1926.[212] The statute authorized the Public Health
Service to quarantine and inspect passengers arriving in the United
States via air, and designated the first airport of entry as
Meachem Field at Key West, Florida. Soon after the advent of
quarantine and inspection at Key West in December of 1927, the
Public Health Service commenced similar operations at airports in
New York City, Tampa, and Miami. The rapid increase in air travel
was tremendous over the following years, with 5,384 aircraft
inspections in 1930 growing to 47,113 by 1949.[213] During this era, a PHS officer (though not
necessarily an actual physician[214] ) inspected each international airplane
arriving in the United States and examined the passengers for
indications of quarantinable diseases. The airports then directed
disembarking international passengers into a separate arriving
area, so that if disease were discovered in one of the passengers
or if a disease vector were discovered on the airplane, it would
not infect others in the airport. In addition, airports contained
small quarantine facilities in the inspection area to accommodate
those whom quarantine inspectors suspected to be infected with a
dangerous contagious disease.[215]

Medical inspectors were not only concerned about
the prospect of diseased passengers, but also by the possibility
that disease-carrying insects might also travel on international
flights. The old concerns of yellow fever rose again, particularly
after the variety of mosquito which carried the disease were found
on board airplanes coming from the tropics in 1931.[216] Because of the yellow fever threat, as well
as new varieties of insects introduced into the United States by
air travel, the Public Health Service implemented an insecticide
program for international aircraft in the 1930s.[217] The policy included spraying aircraft with
insecticides, as well as PHS surveys of mosquitoes around air and
sea ports in order to determine the risk of mosquito transportation
from various areas.[218]

The end of World War I also brought into focus a
public health problem which had not previously been addressed by
federal authorities. The most common medical diagnosis made at many
quarantine hospitals during the post-war years was of sexually
transmitted disease.[219] Because of the prevalence of venereal
diseases contracted during the war, federal and state governments
used quarantine laws to detain prostitutes who worked near military
bases (for longer periods than criminal statutes prohibiting
prostitution would otherwise allow). Strikingly, no actual
diagnosis of a venereal disease was required as a prerequisite for
detention. Rather, a "reasonable belief" that a woman was a
prostitute sufficed as grounds for quarantine detention,
effectively lengthening the sentences for prostitution without
trial.[220] After the end of World War I, Surgeon General
Parran continued to promote federal efforts to curb the spread of
venereal diseases, creating a Division of Venereal Diseases within
the Public Health Service and beginning an educational campaign.
This led to the National Venereal Disease Control Act of 1938,
which provided funding for research and education about venereal
diseases.

This moment in the late-1930's saw the first
instance of decentralization in contagious disease control in the
United States. The Venereal Disease Control Act attempted to
achieve its goals not through federal action, but through
significant grants to the states.[221] This measure came close on the heels of the
Social Security Act of 1935, which had authorized health grants to
the states "on the principle that the most effective way to prevent
the interstate spread of disease is to improve state and local
public health programs. With this legislation, the PHS became
adviser and practical assistant to state and local health
services."[222] Though this change met with little fanfare,
it began a transfer of disease control powers from the federal
government to state governments that has been occurring, with few
exceptions, ever since.

Boundaries to PHS Quarantine Power:

Quarantine Powers of the Department of
Agriculture

The tremendous power given to the Surgeon General
(through the Secretary of the Treasury) under the quarantine and
immigration regulations seems to leave little need for other
quarantine and inspection powers. The prevalence of contagious
diseases brought in by plants and animals, however, posed a serious
problem to American farmers by the early twentieth century.
Inspection of plants and animals was clearly not a physician's area
of expertise, and required the involvement of other agencies. The
regulations promulgated under the powers of the Department of
Agriculture over the years have kept the Public Health Service's
quarantine powers bounded to the control of human diseases and some
animal diseases that can be transmitted to humans.

The Plant Quarantine Act of August 20, 1912
authorized the Department of Agriculture to "establish and maintain
quarantine districts for plant diseases and insect pests; to permit
and regulate the movement of fruits, plants, and vegetables
therefrom..."[223] The statute prohibited the importation or
acceptance of nursery stock in contradiction with the regulations
made by the Secretary of Agriculture for this purpose. The
regulations the Secretary was empowered to promulgate included:

The requirement of a permit.

The requirement of a certificate of inspection and of a certain
inspection procedure performed by the country or state from which
the nursery stock is imported.

The requirement that the nursery stock be grown only under
quarantine conditions or another form of supervision.

Any remedial measures the Secretary deems necessary to prevent
the spread of plant pests, insects, or diseases.[224]

The statute also authorized the Secretary of
Agriculture to forbid the importation of any category of "plants,
fruits, vegetables, roots, bulbs, seeds, or other plant products"
as he deemed it necessary to prevent the introduction of "any tree,
plant, or fruit disease or of any injurious insect, new to or not
theretofore widely prevalent or distributed within and throughout
the United States,"[225] .

At the time the statute was enacted, these
regulations were enforced by a combination of agents of the
Department of Agriculture and the customs agents of the Department
of the Treasury.[226] It imbued agents of the Department of
Agriculture with an inspection power similar to that held by PHS
officers:

"[A]ny employee of the Department of
Agriculture...who has probable cause to believe that any person
coming into the United States, or any vehicle, receptacle, boat,
ship, or vessel, coming from any country or countries or moving
interstate, possesses, carries, or contains any nursery stock,
plants, plant products, or other articles the entry or movement of
which in interstate or foreign commerce is prohibited or restricted
by the provisions of this act, ...shall have the power to stop and,
without warrant, to inspect, search, and examine such
person..."[227]

This power is written as broadly as that of the
Quarantine Act of 1878, leaving three barriers to entry into the
United States: the customs officer, the medical officer, and the
agricultural officer.[228]

The other side of the Department of Agriculture's
quarantine and inspection power deals with animals and meat, rather
than plants. The "Cattle Contagious Diseases Act" of 1905
authorized the Secretary of Agriculture to quarantine any area or
state if he determined that any cattle in that area were infected
with any contagious disease.[229] Soon after the passage of the 1905 Act, a
federal court upheld the Secretary's power to regulate the shipment
of cattle into the United States against constitutional
challenge.[230] Though the power to regulate cattle in
interstate spread of disease was also upheld[231] , the Supreme Court did strike the Secretary
of the Agriculture's attempt to regulate intrastate commerce in
diseased cattle.[232] The Supreme Court later distinguished this
decision, allowing the Department of Agriculture to regulate
intrastate quarantine and disinfection of cattle if for the purpose
of preventing the interstate spread of disease.[233] This power included the power to destroy
infected cattle, but with a limited requirement of
compensation.[234] Because cattle were by far the greatest
concern, it was not until 1962 that Congress expanded the statute
to cover "any animals".[235] Though this power was not officially granted
until 1962, the Secretary of Agriculture had successfully used the
statute prior to that year to regulate other animals, particularly
poultry.[236]

It is important to note that not all
disease-related regulations on animals and plants were implemented
by the Department of Agriculture. Those animals and plants that
carried diseases which could be transmitted to humans were also
under the purview of the Public Health Service's contagious disease
control powers. One such measure, regulating the importation of
psittacine birds, was enacted in 1930 in response to a 1929
outbreak of 170 cases psittacosis, 33 of which were fatal.[237] By executive order, the Surgeon General
absolutely prohibited the importation of psittacine birds (i.e.
birds in the parrot family) from any foreign port in February of
1930.[238] Under pressure from the pet dealers lobby,
the PHS softened this regulation in October 1930, replacing the
prohibition with a set of sanitary restrictions and a requirement
of certification. Still, all imports were required to spend a
mandatory two-week observation period in a federal quarantine
facility.[239] In 1933, regulations regarding psittacine
birds were expanded to cover interstate transport. The federal
government cooperated with state health officers in this effort,
notifying the state authorities as each shipment was released from
its two-week federal quarantine. The regulations appeared
successful, as rates of psittacosis decreased after their
implementation.[240]

World War II, Malaria, and the PHS Act

The outbreak of World War II impacted the Public
Health Service in many of the same fundamental ways that it
affected the rest of American society. In the physician's most
traditional wartime role, medical officers served overseas
providing medical care to soldiers. At the same time, however, PHS
officers were tasked with some additional contagious disease
control measures necessitated by the war. In 1940, the War
Department asked PHS medical officers to implement public health
systems near military camps in the United States, which soon
included a malaria control program throughout the southeast and the
territories.[241] This necessity, combined with the shortage of
physicians due to the war, led the PHS to employ non-physicians as
quarantine inspectors for the first time.[242] The PHS's efforts during this time were
spurred by public and media concern about the risk of "epidemics of
strange and exotic diseases" which might be carried by soldiers
coming home from tropical locations.[243]

The Surgeon General created a new division of the
Public Health Service to deal with malaria, called "Malaria Control
in War Areas" (MCWA). Because its domestic efforts were
concentrated mostly in the South, the MCWA's headquarters were
located in Atlanta, where it has evolved to become the present-day
Centers for Disease Control.[244] The primary method of malaria control during
World War II involved the spraying of insecticides: first Paris
Green, then diesel oil, and finally DDT. The DDT spraying efforts
were so successful, and the threat of malaria so widespread, that
Congress appropriated funding for spraying in areas besides the
military locations previously covered. Most residents had no fear
of the chemical, and "houses were sprayed with a formulation of DDT
that adhered to the walls, furniture, and other surfaces and
retained its insecticidal property against mosquitoes for long
periods."[245] The prevalent view of DDT at the time clearly
predated our current concerns about the carcinogenic properties of
pesticides; all that was known at the time was that DDT was a
"miracle insecticide," and incredibly effective at preventing
malaria.[246]

This expanded role of the Public Health Service, as
well as heightened visibility during the war, led to the most
important legal moment in the Public Health Service's twentieth
century history – the passage of the Public Health Service
Act of 1944. The Act itself actually created little new law; rather
it consolidated the provisions of the 1878 Act and the multiple
statutes passed for similar purposes in the ensuing sixty-six
years. Because so little of the Act actually presented new law, and
because of the public support for the malaria control and other PHS
efforts which transpired during the War, the bill was almost
entirely uncontroversial.[247] The report on the bill by the House Committee
on Interstate and Foreign Commerce cited the importance of
clarifying the sometimes unclear and even contradictory hodge-podge
of laws authorizing federal health activity:

"Passed at different times, these provisions of law
have generally neither expressly repealed nor expressly amended
their predecessors, but have simply superimposed new duties and
authorities on those already existing....[T]hey have led to serious
inconsistencies and ambiguities, as well as to gaps and
duplications in substantive authority..."[248]

According to Surgeon General Parran, the areas of
public health law most in need of codification were the provisions
which addressed quarantine and inspection.[249]

The Section of the PHS Act which deals directly
with quarantine and inspection laws is Section 361. Because most of
the section simply organizes and reasserts earlier laws, this
description of the statute will limit itself to the central
provisions and any changes from past laws. The crux of the powers
conferred by the Act of 1893 were embodied in Section 361(a), which
authorizes the Surgeon General to "make and enforce such
regulations as in his judgment are necessary to prevent the
introduction, transmission, or spread of communicable diseases from
foreign countries into the States or possessions, or from one State
or possession into any other State or possession."[250] In a hearing of the subcommittee of the
Interstate and Foreign Commerce Committee, Congressman Willcox led
Surgeon General Parran through a description of the changes to
previous law inherent in the section. One of these changes added to
the interstate and foreign quarantine power the ability to destroy
contaminated or infected objects or animals.[251] The most significant change in Section
361(a), however, was to remove an obstacle to the Surgeon General's
power to regulate quarantine and inspections. The previous law had
conditioned that regulatory power on the "nonexistence or
inadequacy of state and local regulations", while also requiring
that the federal regulations be uniform. Section 361(a) eliminated
this condition, for the reasons articulated by Congressman
Willcox:

"The States ...have wholly withdrawn from the field
of foreign quarantine regulation. So far as this part of the
authority is concerned, the conditions upon the exercise of Federal
authority which may have been appropriate in 1893 seem no longer to
have any function. In the field of interstate quarantine...Federal
regulation has been confined to matters pertaining to the
interstate movement of people or things over which the States have
both constitutional and practical difficulties in achieving
effective control."[252]

This change allows the Surgeon General to
promulgate regulations regardless of whether a state or locality
had also enacted regulations.

Sections 361(b) and (c) clarify the detention and
apprehension powers involved in medical inspections of people
coming from other countries.[253] This aspect of the law remained mostly
unchanged, with the exception of a provision for conditional
release of detainees. Prior to passage of the 1944 PHS Act, persons
suspected of having dangerous communicable diseases were detained
at the point of entry, but the question of whether they might be
released on certain conditions had been unresolved. Subsections (b)
and (c) provide for the release of detainees on the condition of
meeting requirements that ensured that the suspected disease would
not spread, for example, regular reporting to a health authority.
This provision was needed in order to deal with the increased level
of travel by air, which introduced the heightened likelihood that
travelers would contract a disease in their home country, pass
through quarantine without showing symptoms of the disease, and
develop symptoms soon after.[254] The Act specified that the set of diseases
for which a person could be detained or conditionally released
would be listed by Executive Order of the President.[255]

Section 361(d) provides for similar detention
powers, but as related to interstate quarantine, rather than
foreign quarantine powers. Under this subsection, federal health
officers were authorized to examine and detain any individual
"reasonably believed to be infected with a communicable
disease...and (1) to be moving or about to move from a State to
another State; or (2) to be a probable source of infection to
individuals who...will be moving from a State to another
State."[256] Like the examination and detention provisions
under subsection (b), this power is authorized only in regard to
the list of communicable diseases set by Executive Order.[257] Though the legislative history indicates that
this action was already available to federal health authorities,
the provision clarified a power doubted by some.[258] The drafters of subsection (d)(2) intended it
to apply primarily to prostitutes with venereal diseases who were
likely to pass their diseases to people who would then cross state
lines to infect others.[259] Persons detained under this provision, as
well as those detained under the foreign quarantine provision, were
entitled under the statute to medical treatment by the Public
Health Service.[260]

Though Section 361 deals most directly with
quarantine and inspection, other provisions of the PHS Act
complement the powers and duties provided for in that section. For
instance, the Act continued the Public Health Service's control
over all quarantine stations[261] and required each vessel to present a bill of
health at its point of entry into the United States.[262] Section 311 formalized the cooperative
relationship between state and federal health authorities,
directing the Surgeon General to accept voluntary assistance from
state and local governments, and to aid state and local governments
with the enforcement of their quarantine and health
regulations.[263] Section 325 addresses the Public Health
Service's role in medical examination of aliens, directing the
Surgeon General to "provide for making such physical and mental
examinations of arriving aliens as are required by the immigration
laws, subject to administrative regulations prescribed by the
Attorney General and medical regulations prescribed by the Surgeon
General,"[264] . Section 362 complements Section 325 by
authorizing the Surgeon General to prohibit "the introduction of
persons and property from such countries or places as he shall
designate," when there exists a serious danger of introduction of a
communicable disease being transmitted from a certain country or
other location.[265]

Other sections of the PHS Act create powers that
had not been formalized previously. Section 363 confers upon the
Surgeon General special powers during times of war, in order to
protect those in the armed services from communicable diseases. The
section authorizes the Surgeon General to apprehend and
examine:

"any individual reasonably believed (1) to be
infected with such disease in a communicable stage and (2) to be a
probable source of infection to members of the armed forces of the
United States....if upon examination any such individual is found
to be so infected, he may be detained for such time and in such
manner as may be reasonably necessary."[266]

This provision differs fundamentally from the
similar provision in Section 363finding its Constitutional basis
not in the protection of interstate commerce, but in the protection
of members of the armed forces.[267] This section's Congressional supporters
seemed to believe that the Surgeon General already possessed this
authority, but "were advised by the Attorney General against
attempting to assert it without a clearer legislative basis than
now exists." Though the inclusion of this section was actually
prompted by the threat of venereal diseases, its language is broad
enough to encompass emergencies that might arise with regard to
other diseases as well.[268]

The Act also formally updated the federal
quarantine power by expanding it officially to aircraft. Section
367 authorized the Surgeon General to command all quarantine and
inspection activity for civil aircraft, holding the same powers
over this mode of transportation as he had exercised over seagoing
vessels. Surgeon General Thomas Parran testified in support of this
new measure, arguing that "the revolution in travel brought about
by airplane has necessitated the revolution of our methods of
control and our defense against disease. All of the implications of
that statement I cannot see even at this time."[269] Perhaps because of the unknowable
implications of air travel, this section of the Act is written
extremely broadly, without specific references to methods or
processes of inspection.[270] It does, however, refer to the powers under
Sections 364-367, which authorize the Surgeon General to create and
direct quarantine stations, authorize the use of customs and Coast
Guard officers to enforce quarantine regulations, and require bills
of health. The extent and manner in which these powers would be
used, however, would be at the discretion of the Surgeon
General.[271]

One provision which was discussed heavily as an
amendment to the PHS Act would provide for the control and
prevention of the spread of tuberculosis, a disease which posed a
significant threat at the time, and continues to vex us today. The
proposed amendment would require:

The mass chest X-ray examination of the entire adult population
of the United States, in order that all infectious persons may be
quickly identified and isolated, in sanatoria or other appropriate
facilities, as long as they remain capable of spreading the disease
to others.

Adequate medical care, preferably in hospitals, for the known
cases of tuberculosis which are active but not infectious...

Whenever new cases are found, vigorous efforts must be made to
examine all family contacts and to bring those with newly
discovered disease more promptly under medical care and
isolation.

Every source of public assistance should be made available for
the vulnerable groups—those exposed to tuberculosis but not
yet suffering from the disease.[272]

The primary policy goal of this bill was to
increase funding for x-ray screenings for tuberculosis, in order to
identify those who were infected but not yet symptomatic.[273] The report by the House Committee on
Education and Labor emphasized the importance of this measure,
noting that developments in x-ray technology "[made] it possible
within a few years' time to locate, at a moderate cost, practically
every case of tuberculosis in the population....By these means we
can stop the human and economic waste of chronic disability and
premature and unnecessary deaths..."[274] The bill's most immediate priority, however,
was to fund the screening and treatment of "war workers" and their
families who were not often eligible for sanatorium care because of
state residence requirements.[275]

At the time of the bill, the number of deaths from
tuberculosis was significant enough to merit the highest level of
public health concern, and there was reason to believe it might
climb even higher in the near future. Tuberculosis caused
sixty-thousand deaths in the United States annually, and was the
most common cause of death among people between the ages of fifteen
and thirty-five. The rate of the disease was even higher in the
African-American population, amounting to one third of all deaths
of African-Americans between the ages of twenty and
thirty-four.[276] Tuberculosis imposed greater economic costs
than most fatal communicable diseases, because it most often struck
people in the prime of their productivity. To make matters worse,
history had shown that rates of tuberculosis usually increased
after wars, due to the return of soldiers who had contracted the
disease abroad. In 1944, this caused even greater worries over an
increased burden from tuberculosis, particularly because the
disease had spread in Europe during the war.[277] This increase already appeared in the United
States at the time of the bill; according to the Metropolitan
Insurance Company, tuberculosis rose by 7.8 percent among its
policyholders in the first three months of 1944.[278]

The use of x-ray technology as a tuberculosis
screen presented a way of addressing the most difficult aspect of
the disease from a contagion standpoint: the problem of dealing
with patients who were infected but not yet contagious, since the
disease only becomes contagious when the patient exhibits
symptoms.[279] Surgeon General Parran argued the merits of
mass x-ray screening on the basis of being able to keep those who
are not yet contagious from developing symptoms and infecting
others, and also on the basis of improving the recovery prospects
of those being screened: "The particular value of mass X-ray
examinations is that two-thirds of the cases discovered are in the
earliest stage when recovery is almost certain, with good
care."[280] Absent a mass examination program, these
non-symptomatic tuberculosis victims would not present themselves
for medical care until their disease was "70 percent advanced,"
when their prospects for recovery were much less hopeful.[281] Prior to the bill's passage, the resources
were not available to screen on a large-scale. With the armed
forces examination stations rejecting over 100,000 people and
sending them back to state and local authorities, those facilities
were completely overwhelmed by the numbers of at-risk and infected
persons.[282] Similarly, federal resources were unable to
meet the needs of those infected, with only enough funding for
eight mobile x-ray units.[283]

The Gradual Post-War Relaxation of Federal
Control

Though a snapshot of quarantine law in 1955 would
not differ substantially from one of quarantine law in 1900, the
comparison offers insight into the translation of strict quarantine
and inspection requirements into relatively "modern" circumstances.
In 1955, the default rule under federal quarantine policy was that
all airplanes and ships entering the United States were examined by
federal medical inspectors. Some ships were exempted, if their
ports of origin were known to be free of infectious diseases, but
even these underwent examination at their ports of
departure.[284] The diseases which were deemed
"quarantinable" at the time were similar to those in 1900:
smallpox, cholera, yellow fever, typhus, and plague.[285] After the passage of the PHS Act, x-ray
examinations for tuberculosis were included in the medical
inspection of immigrants and most visitors as well.[286] In addition to these regulations, the 1946
Foreign Quarantine Regulations imposed additional restrictions for
the purpose of rabies prevention on the importation of dogs, cats,
and monkeys. Though the rabies vaccination requirements for cats
and monkeys were eventually discontinued, these animals are still
subject to inspection at points of entry, and the vaccination
requirement for dogs continues today. Animals from areas known to
have animal infections of various human-contagious diseases were
also barred.[287]

In 1952, the Immigration and Nationality Act
required that not only would every prospective immigrant be
medically examined prior to entry into the United States, but that
he submit to a medical examination before receiving a visa and
departing for the United States. Though the 1952 Act required
examinations for every person applying for immigrant visas, it made
medical examinations optional (at the discretion of the consular
officer) for those applying for nonimmigrant visas.[288] In 1976, the issuance of a visa was
determined not to be sufficient to guarantee entry into the United
States, only guaranteeing the holder the right to reach the point
of entry and be inspected at that point.[289]

Though the level of communicable disease vigilance
shown in the 1955 snapshot resembles that of the turn of the
century, the next decade would lead this protection into decline.
As advances in medical technology during the 1950's and 1960's
(particularly the success of vaccines) succeeded in weakening
communicable diseases, public concern waned and the voice of
anti-regulation commerce interests became louder and more credible.
Two primary factors led to a change in federal quarantine power
which would fundamentally change the role of federal quarantine
power in public health policy. The first of these factors was the
tremendous victory over smallpox. The Centers for Disease Control
(a department of the Public Health Service) combined forces with
the World Health Organization in the 1960's and 1970's to end
naturally-occurring smallpox worldwide.[290] The other factor involved in weakening
quarantine powers was an institutional one; because some in
Congress felt that the PHS should be more accountable to the
public, they changed the its leadership from the relatively
autonomous Surgeon General to a political appointee, the Assistant
Secretary for Health.[291] Though it is impossible to weigh the relative
importance of these two factors, it is clear that both political
and policy concerns played a role in the deregulatory efforts made
in federal quarantine powers in the late 1960's and following
decades.

A comparison of the Centers for Disease Control,
Division of Quarantine's inspection and quarantine policies in 1967
and 1970 illustrates the 1967 reorganization's dramatic
changes.[292] The Division of Quarantine itself was
transferred to CDC control in 1967, and the transfer signaled a
change in the way quarantine was viewed by both government and the
public.[293] The CDC Division of Quarantine primarily
handled foreign quarantine issues, with the FDA (made a part of the
PHS during the 1967 reorganization) responsible for interstate
quarantine issues.[294] A number of measures were relaxed in the
years after the transfer. In 1967, each person entering the United
States for any reason was required to present for inspection
documentation proving that he or she had been vaccinated against
the quarantinable diseases. By the mid- to late-1970s, due to the
near-eradication of smallpox, no one was required to show proof of
vaccination.[295] (Interestingly, the last natural case of
smallpox was reported in Somalia in 1977, a full ten years after
the U.S. significantly decreased its protections against entry of
smallpox-infected travelers.[296] )

The infrastructure for inspecting and quarantining
people arriving by airplane dissolved during this time as well;
separate arrival and inspection areas were no longer required by
the mid-1970s, and "passengers moved unrestricted for health
reasons into airports."[297] Similarly, while in 1967 every boat and
airplane arriving in the United States from a foreign port was
inspected by a federal quarantine inspector, by the mid-1970s, no
airplanes and boats were inspected unless the pilot reported an
illness to the quarantine station.[298] At the same time, overseas inspections were
drastically reduced, phasing medical inspectors out of the
inspection process.[299] In the early 1970s, the federal government
streamlined the multiple inspection process (involving the Public
Health Service, Immigration Service, Customs Service, and
Department of Agriculture) so that passengers enjoyed "one stop"
inspection in which any one of these agencies could authorize their
entry.[300] The Division of Quarantine also began to
reduce its role in cargo and animal inspections, allowing Customs
officers to perform these inspections as well.[301]

The relaxation of communicable disease vigilance
during this time included the end of medical inspection at the
U.S.-Mexico border. In 1967, smallpox vaccinations were required
for every person crossing the border. Besides being a protective
measure, this policy led to the free administration of more than
800,000 smallpox vaccinations each year. By the late 1970s,
however, the threat of smallpox no longer justified this
expense.[302] Tuberculosis had also been a long-feared
disease which often found its way into the United States via
Mexico, and the quarantine policies of the 1960s required people
crossing that border to show "Border Crossing Cards" proving that
they had been screened and were free of the disease. The CDC
dropped this requirement in the early 1970s,[303] and by the late 1970s, there was no CDC
presence at the Mexican border: "[T]he border ...was virtually open
for health purposes."[304]

Many of these deregulatory measures seem simply
logical and efficient. A switch to "one stop" inspections, rather
than the burden inspection by three different agency inspectors,
must have seemed like a clearly superior move. One wonders,
however, whether the policymakers involved intended to phase out
medical inspections altogether, or whether they expected one
inspector to effectively screen for agricultural, medical, and
commerce purposes. It is clear that the primary push against
quarantine came from commerce interests, to whom medical inspection
and quarantine represented a costly and unnecessary barrier to
trade.[305] With the great scourge of smallpox
vanquished, quarantine opponents had their moment – a
relatively disease-free world in which fears of post-war
importation of tropical diseases had faded from the cultural
memory. In this sense, the PHS quarantine officers had worked
themselves out of a job. An article in the Journal of Commerce,
written in 1967, summarized this feeling well with its criticism of
"archaic quarantine".[306]

The CDC's own description of the deregulation
accords with the criticism of pre-1967 quarantine policy as
unnecessarily costly. Because of this assessment, the CDC curtailed
the quarantine program and "changed its focus from routine
inspection to program management and problem
intervention".[307] This change in focus resulted from the
conclusion that dangerous communicable diseases had been largely
eradicated, and that the only significant danger would come from
isolated "hot spots". In 1979, the Division of Quarantine further
relaxed control of foreign disease immigration by discontinuing the
routine spraying of aircraft due to the concerns about the health
effects of pesticides and "the lack of evidence that aircraft
spraying played a significant role in disease control,"[308] . The CDC also discontinued the mosquito
surveys it had conducted near airports and sea ports (in order to
monitor yellow fever and malaria threats), relying instead on local
authorities to perform this function.[309] In order to identify and protect against "hot
spot" outbreaks, the CDC developed a surveillance program to
monitor emerging epidemics in other countries. The Division of
Global Migration and Quarantine, which administered this
surveillance program, was authorized under the PHS Act to "detain,
medically examine, or conditionally release individuals and
wildlife suspected of carrying a communicable disease."[310]

Soon after the decline in medical inspections of
ships abroad and upon entry into the United States, serious
outbreaks of gastrointestinal diseases began to occur on cruise
ships. When the problem became significant, in the early 1970s, the
CDC's Division of Quarantine initiated sanitation surveys and an
inspection program, leading to the beginning of the Vessel
Sanitation Program in 1975.[311] Though the Vessel Sanitation Program was
authorized under Section 361 of the PHS Act, cooperation with the
program is voluntary and funded by fees charged to the
ships.[312] Even for those ships that did participate in
the program, the level of enforcement is slight. If a ship receives
a failing score on its inspection exam, it is merely reinspected
within thirty to sixty days. If the ship shows an "imminent health
hazard," however, the inspector can recommend that the ship not
sail.[313] Though this recommendation has been made only
rarely (five times since 1987), the CDC has enforced its
recommendation against disobedient cruise lines, as in the
following situation in which a ship disregarded the recommendation
against sailing:

"This ship was boarded upon its return to a U.S.
port, and with the assistance of the U.S. Coast Guard, CDC was
prepared to detain the ship to port. The ship's management was able
to implement immediate corrective actions which removed the
imminent health risk. At any time, the Director of CDC may
determine that failure to implement corrective actions presents a
threat of introduction of communicable diseases into the United
States and may take additional action to include detention of the
ship in port."[314]

This detention power, though reminiscent of earlier
quarantines for on-board sanitation problems, is much more limited
in scope and in actual enforcement. The fact of voluntary
cooperation, despite the insurance incentives for cruise ships to
cooperate with the program, separates this program entirely from a
system in which federal officers inspected every vessel destined
for the United States not only for gastrointestinal disease-related
sanitation, but for the communicable health of is passengers and
crew as well.

Though the practical applications of Section 361
weakened during the 1960s and 1970s[315] , courts still deferred to agencies in the
exercise of those powers. State of Louisiana et al. v. David
Mathews, Secretary of Health, Education, and Welfare
involved a challenge to a regulation by the Food and Drug
Administration, promulgated under the authority of Section 361 of
the PHS Act, which banned the sale and distribution of small
turtles.[316] The plaintiff, the State of Louisiana (on
behalf of the National Turtle Farmers and Shippers Association)
sought to enjoin the ban on the grounds that it was arbitrary and
capricious and exceeded the FDA's authority under the Act.[317] The plaintiffs contended that the regulation
exceeded the FDA's authority because it banned both infected and
uninfected small turtles, whereas (plaintiffs argued) the FDA was
"authorized to prohibit only the interstate shipment of turtles
which may spread communicable disease,"[318] . The court concluded, however, that the ban
on turtles could not be so limited because it could not be shown
that a total ban was unnecessary to prevent the spread of
disease.[319] The plaintiffs also argued that the
regulation's attempt to control intrastate commerce exceeded the
PHS Act's scope. The court rejected this claim as well, deferring
to the FDA's judgment that the ban on the intrastate sale of
turtles was necessary to prevent the interstate spread of the
diseases Salmonella and Arizona.[320] In upholding the regulation, the court
referred to the "broad, flexible powers" granted to federal health
authorities "who must use their judgment in attempting to protect
the public against the spread of communicable disease,"[321] .

Authority under Section 361 also left to the CDC
the discretion to define a list of diseases that would serve as
grounds for quarantine and detention, and another list of diseases
which would be grounds for rejecting an applicant for immigration.
During the period of the 1970s, this too was streamlined. Prior to
1971, the list of "dangerous contagious diseases" which
disqualified potential immigrants included several parasitic and
fungal diseases which could be fatal if untreated. However, because
these diseases were not directly transmittable from person to
person, the CDC removed them from the list.[322] The list was last amended in 1987 (adding
HIV), to include the following eight diseases: chancroid,
gonorrhea, granuloma inguinale, HIV, infectious leprosy,
lymphanogranuloma venereum, infectious syphilis, and active
tuberculosis. It is worth noting that six of these eight diseases
are generally sexually transmitted.[323] Although the removal of the treatable,
difficult-to-transmit, parasitic and fungal diseases seems logical,
some health policy experts have questioned why Hepatitis B and
malaria, which can be transmitted in some of the same ways as HIV
and syphilis, are not listed.[324]

Of course, these are not the only diseases which
will prevent a person from moving freely into the United States.
The list of quarantinable diseases, promulgated by Executive Order,
defines those diseases for which federal medical officers have the
power to detain, isolate, or conditionally release people. This
list grew to include as many as twenty-six diseases, but was
reduced after 1982, removing: anthrax, dengue fever, leprosy,
ringworm, and several sexually transmitted diseases. Since that
time, the list has included: "suspected smallpox", cholera, yellow
fever, plague, diptheria, infectious tuberculosis, and viral
hemorrhagic fevers (i.e. Ebola virus and others).[325]

Regulations passed in 1985 formalized the
regulatory relaxation that had evolved since 1967. The 1985
regulations lifted the previous requirement that a vessel departing
for a U.S. port must obtain and deliver a bill of health.[326] They also formally discontinued a measure
which had, in the previous half century, helped control plague
– rodent inspection of vessels.[327] Most significantly, the regulations also
formalized the practice of controlled free pratique which had
evolved over the previous twenty years. This practice allowed ship
captains to radio ahead to the quarantine station attesting to the
health of the ship, thus exempting the ship from medical
inspection.[328] With this freedom, however, came
responsibility. 42 CFR 71.21(a) requires that:

"the master of a ship destined for a U.S. port
shall report immediately to the quarantine station at or nearest
the port at which the ship will arrive, the occurrence, on board,
of any death or any ill person among passengers or crew (including
those who have disembarked or have been removed) during the 15-day
period preceding the date of expected arrival or during the period
since departure from a U.S. port (whichever period of time is
shorter)."[329]

Subsection (b) made the same requirements of
aircraft commanders.[330] Granting of a controlled free pratique did
not prevent inspectors from boarding a ship or plane in order to
confirm that conditions were as reported. However, the switch to
controlled free pratique drastically diminished the number of
medical inspections performed on arriving vessels and
airplanes.[331]

The decreased level of daily vigilance in
quarantine and inspection was matched by a decrease in resources.
In 1985, six years after the CDC formally ceased its mosquito
surveys and its practice of spraying airplanes with pesticides, a
variety of mosquito previously unknown in the United States was
found in Texas. The Aedes albopictus ("Asian tiger")
mosquito, native to East Asia, is a vector of dengue fever and
encephalitis. After the CDC's study of the infestation revealed
that the mosquitoes had been imported in used tire casings, it
required importers of used tire casings from Asia to disinfect
their imports prior to shipment. Nonetheless, the CDC reported that
it was unable to fully monitor and enforce this requirement because
of "resource problems".[332] This reduction in resources, while at least
arguably merited, is striking. According to the CDC, "In 1967, at
the time of the transfer to the CDC, the Division [of Quarantine]
operated 55 quarantine stations and 43 medical examination posts
abroad with a staff of over 600. Today, the Division of Quarantine
operates 7 quarantine stations and two overseas posts with a
[total] staff of 70 employees."[333]

Issues in Current Quarantine Law

The current version of Section 361 of the PHS Act
does not differ measurably from the its predecessors.[334] However, the implementation of the Act
differs substantially from the days when federal agents stood on
the front line against the international and interstate travel of
disease. The changes in implementation have involved both a
diminishing federal public health presence and an increased level
of responsibility delegated to the states. One of the primary ways
in which the Division of Quarantine was able to downsize was by
outsourcing its medical examination functions to other agencies and
to state authorities. The primary agency to which this
responsibility has been transferred is the Immigration and
Naturalization Service, which designates and reviews medical
inspections of immigrants conducted by civil surgeons.[335] The Division of Quarantine provides technical
instructions and advice to those physicians, as well as to
inspectors of the Customs Service, Department of Agriculture, and
the Fish and Wildlife Service. The instructions to these agencies
provide a summary of practical implementation of the current
regulations promulgated under Section 361 of the PHS Act. (See
Appendix A.) If the inspectors from these agencies detect a
"situation of public health interest," they notify the CDC's
Division of Quarantine so that it can provide assistance.[336] In addition to sharing its inspection
authority with these agencies, as of August 2000, the CDC again
shares its regulatory authority over communicable diseases with the
FDA. While the CDC retains authority for the interstate quarantine
of people, the FDA exercises authority over animals and
objects.[337]

The use of state resources for quarantine and
medical inspection seems to signify a return to the local roots of
quarantine law. Many aspects of federal-state cooperation seem
entirely necessary. For instance, since 1980, the CDC has provided
states with information regarding immigrant medical records, and
now has a notification system through which it alerts state health
departments to the arrival of immigrants with serious diseases like
tuberculosis or HIV.[338] As federal quarantine enforcement has
minimized over the post-war decades, all states have retained
authority to quarantine individuals for communicable diseases,
allowing them to respond to such warnings with their own
resources.[339] The Federal Refugee Act mandates that states
provide medical screening of all refugees arriving in the United
States in order to follow-up with those already known to carry
infectious diseases and to screen recent arrivals for diseases
which may have developed after their pre-screening at their ports
of departure.[340] Unfortunately, however, states are often
unable to perform the tasks of monitoring these refugees,
frequently failing to perform re-screenings within the required
thirty-day period.[341] Further, the significant differences in
screening procedures between states make it difficult to monitor
the medical records of immigrants who move from state to state (a
serious problem in the case of migrant workers) and ensure the
proper level of medical supervision.[342]

In addition to the problems with refugee
re-screening, states seem to have trouble monitoring and
controlling disease generally. A survey of all state communicable
disease control systems reported in the Columbia Law Review in 1999
concluded that state-level public health infrastructure was in
decline.[343] This conclusion was supported by a 1988
report by the Institute of Medicine (IOM), which determined the
state-based public health system to be "inadequate" to protect the
public health. According to the IOM, the United States had "let
down [its] public health guard as a nation, and the health of the
public is unnecessarily threatened as a result."[344] Though some might quarrel with this
conclusion, one cannot argue that the public health infrastructure
has been significantly strengthened since the time the IOM made its
report. Funding for public health purposes at both the federal and
state level has either decreased or remained constant over this
period, particularly in regard to communicable disease monitoring.
Since states have the responsibility to monitor and report
outbreaks of communicable disease to the CDC, their ability to
perform that function is crucial to the success of national
communicable disease control. Nonetheless, state and local funding
for communicable disease monitoring decreased during the 1990s,
with less than $75 million allotted to this function in an average
year.[345]

The requirements for medical inspections also raise
questions about how effective that system can be in achieving its
goals even if its proscriptions are thoroughly
enforced.346 Current law still only requires medical
examinations for those foreign visitors applying for immigrant
status. Those seeking only temporary or other alien status
may be examined at the discretion of a consular or
immigration officer if the officer has reason to believe that the
applicant carries a communicable disease.[346]

Though an immigrant who stays in the United States
permanently will certainly have more time and more opportunities to
spread disease, an alien visitor who carries an infectious disease
into the country for only a matter of weeks still presents a
serious public health threat.[347] Though the consular officers who issue even
temporary visas are supposed to report visitors who show signs of
illness to a medical examiner, most of the diseases for which the
law requires exclusion cannot be detected without a full medical
examination which is well beyond the expertise of a consular
officer.[348]

Concerns for the Future

The history of federal use of the quarantine and
inspection power shows how that power was shaped by the medical and
epidemic state of the world. In this era of antibiotics, vaccines,
and rapid international travel, it may seem both unnecessary and
impracticable to implement medical inspection and quarantine with
the scrutiny used a century ago. However, we face conditions today
– outbreaks of communicable diseases worldwide and
bioterrorism -- which present the possibility that widespread
epidemics may recur. These problems are not currently plaguing the
United States, but the experience of AIDS and the warning knell of
last fall's anthrax attacks may present a template for unforeseen
future troubles. The difficulty of anticipating future needs is
that, in the present, the enemy which one is battling is imaginary,
and thus difficult to summon political support against.
Nonetheless, as one commentator at the Center for Civilian
Biodefense Strategies at Johns Hopkins University said, in order to
prepare for success, "you don't skate to where the puck is; you
skate to where it's going to be."[349]

Scott Burris argued in the Houston Law Review that
the specter of communicable disease is not coming back, but that it
never actually left us: "Only thirty years separate the effective
control of polio in the mid-fifties and the emergence of HIV in the
United States."[350] Currently, infectious diseases rank as the
third cause of death in the United States, and are responsible for
annual costs of approximately $120 billion as well as 25% of all
visits to doctors.[351] Today, AIDS is not the only frightening
communicable disease which threatens us; deaths from communicable
diseases worldwide grew by 58% between 1980 and 1992, and the last
decade has seen outbreaks of deadly diseases like tuberculosis,
Hanta virus, Ebola, Legionnaire's Disease, encephalitis, and
salmonella.[352] Further, global disease conditions continue
to foster even more diseases; according to the World Health
Organization, over thirty new communicable diseases were identified
between 1980 and 2000.[353] In addition to the new diseases, some which
had previously been abated (yellow fever, cholera, and dengue)
became more prevalent.[354] The ability of insects to introduce deadly
diseases into the United States was proven in the summer of 1999,
with the small outbreak of West Nile virus in New York.[355] The continuing increase of globalization in
travel and trade only speeds the processes by which new diseases
can reach our shores from areas once too remote to touch the rest
of the world.[356]

Airplane travel is, of course, the primary means by
which diseases travel long distances. The speed and availability of
travel, however, is not the only unique communicable disease threat
airplanes present. Because of the lack of ventilation standards for
airplanes, they can become "flying petri dishes for disease
incubation".[357] This unhealthy aspect of flight not only
endangers the other passengers on planes that carry an infectious
passenger, but also can multiply the threat presented by a single
infectious passenger to the destination country. Some recent
near-disasters illustrate the potential consequences of airborne
disease. For example, eleven passengers arriving from India were
identified by New York City health officials as carrying bubonic
plague into the United States in 1994. Even more recently, in
spring of 2000, four passengers returning to the United States from
Saudi Arabia after the annual hajj (to which 15,000 U.S. residents
traveled) were diagnosed with extremely contagious and potentially
deadly meningococcal diseases.[358]

The possibility of dangerous communicable diseases
being introduced into the United States by airplane is made even
more serious by the increasing rate of drug-resistance in some of
these diseases. Drug resistant strains of disease evolve due to
incomplete treatment with antibiotics, and from general low-dose
exposure to antibiotics over time.[359] Physicians have identified multi-drug
resistant strains (i.e. varieties of disease that do not respond to
the usual arsenal of antibiotics) of both tuberculosis and
streptococcus.[360] The emergence of multi-drug-resistant
tuberculosis (MDR-TB) has been particularly striking; seventeen
states had reported cases of MDR-TB by 1994. Because the majority
of tuberculosis infections are borne by immigrants from countries
with much higher rates of tuberculosis (primarily Mexico and
Southeast Asian countries[361] ), immigration-rich areas of the United
States tend to have higher rates of the disease than
others.[362] The drug-resistant form of tuberculosis is
far more deadly than its drug-sensitive predecessor. Only 60% of
patients diagnosed with MDR-TB are eventually cured, and the
disease is fatal to 80% of HIV-infected patients who contract
it.[363]

Drug-resistant strains of communicable diseases
like tuberculosis present new and knotty legal and policy problems.
The factors that contributed to the emergence of MDR-TB reveal the
ways in which it raises issues of involuntary detention for even
those who are not yet infectious. In 1987, federal health officials
were confident that tuberculosis would soon be eliminated, due to
the steady thirty-year decline of the disease and success in using
multiple drug therapy. However, by the end of the 1980s, it was
clear that tuberculosis was again on the rise, increasing by 20%
between 1985 and 1992.[364] Because tuberculosis exists in both
symptomatic and non-symptomatic states and requires a long regimen
of antibiotics to be fully cured, the greatest risk of MDR-TB comes
from patients who stop taking their antibiotics after their
symptoms have abated but before the regimen is complete.[365] Unlike the days when tuberculosis patients
were kept in specialized sanatoria, supervising patients today on
an outpatient basis and forcing them to take medication is nearly
impossible.[366] Once a patient does develop MDR-TB, not only
is his risk of death elevated, but the costs of his treatment
skyrocket. According to the World Health Organization, treatment of
MDR-TB is one hundred times as costly as treating drug-sensitive
forms of tuberculosis and requires intravenous drugs, chemotherapy,
and sometimes surgery.[367]

The need to ensure that tuberculosis patients take
their antibiotics has led some public health theorists to consider
detaining those patients who are at risk of transmitting the
disease. Because those patients in unsymptomatic (and, therefore,
not contagious) phases of the disease are less likely to take their
medication and may subsequently develop MDR-TB, health officers
would have to be able to detain even those tuberculosis patients
who are not presently contagious.[368] States do not currently detain unsymptomatic
patients, partially because of the questionable constitutionality
of the proposal.[369] Substantive due process protections against
unjustified detention may require proving that an unsymptomatic
patient is likely to become contagious soon, or that she engages in
behaviors that make her more likely to develop MDR-TB (i.e. failure
to take medication consistently).[370] The power to compel tuberculosis patients to
take antibiotics would likely survive a constitutional challenge,
in much the same way that state laws requiring mandatory
vaccinations have been upheld.[371]

Even if this problem were solved, however, the
difficulties presented by undiagnosed persons infected with
tuberculosis carrying the disease into the country would persist.
Because only those applying for immigrant or refugee status are
tested for tuberculosis, all other visitors to the United States
enter without being tested for the disease. Though tuberculosis is
not usually transmitted in one-time encounters, instead passing
usually to those who spend significant time with the infected
person, it spreads much more easily in facilities with poor
ventilation.[372] Given the earlier discussion of airplanes as
excellent disease hosts due to bad ventilation, tuberculosis seems
quite likely to be transmitted in that environment. Nevertheless,
the CDC appears to have rejected the notion of more widespread
testing of foreign travelers for tuberculosis. Ken Castro, the
Director of Tuberculosis Elimination at the CDC, has maligned the
idea: "Imagine if...you needed a chest X-ray to go to London or
France".[373] Instead, Castro reiterated the CDC's recent
approach to all communicable diseases – to try to stem them
at their source: "The more important way to solve the problem is to
reduce the rate in countries that are highly impacted."[374]

Though present-day public health policymakers do
not embrace the quarantine inspection policies of the past,
mainstream authorities have begun to cast the communicable disease
threat in terms of national security. Even before the attack of
September 11, 2001 and the anthrax assault which followed, the
National Intelligence Council (a division of the Central
Intelligence Agency) reported to Congress that "new and re-emerging
infectious diseases will pose a rising – and in the worst
case, catastrophic – global health threat that will
complicate U.S. and global security over the next twenty
years."[375] David F. Gordon, who testified before the
House panel, argued that the greatest domestic threat came from
diseases carried by people traveling by airplane and from objects
shipped from abroad. Further, argued Gordon, national security was
threatened even by diseases that did not reach our shores, because
of the danger to U.S. citizens traveling abroad and to armed forces
stationed in other countries.[376]

Because even diseases which never reach U.S. shores
threaten our security, and because of the impossibility of keeping
prevalent diseases completely outside of the country, the current
dominant approach to defense against the communicable disease
threat is not to barricade the borders against disease. Rather, the
strategy proposed by the Surgeon General and pursued by the CDC is
to detect diseases early in their points of origin and stop them
before they gain momentum.[377] In 1999, Surgeon General Satcher articulated
this view:

"The health of the American people cannot be fully
protected unless efforts are focused on maintaining a system of
worldwide health surveillance. It is startling to think that in
under thirty-six hours, ...an individual, a disease, or a product
can travel from any one point on the globe to another, and thereby
pose a serious threat to the health of the entire world."[378]

Though this preventative approach dominates current
thinking about communicable diseases, renewed focus on the
possibility of bioterrorism has recently led health officials to
reconsider their abilities to implement wide-scale quarantines. A
bioterrorist attack involving smallpox, one of the most often-cited
bioterrorism possibilities, could require swift quarantines of
entire towns and cities. Though practical responsibility for
communicable diseases inside the United States (rather than at its
borders) has been shifting to the states over the last three
decades, even large states like Texas have had no experience in
implementing this sort of large "area quarantine".[379] Doubtless, state authorities would receive
assistance from federal officers and military resources in the case
of a widespread smallpox attack, but as yet there is no clear set
of procedures through which federal, state, and local health
authorities would interact in an emergency situation.

The CDC recognizes this problem and has tried to
suggest a template for state response to a smallpox
emergency.[380] The CDC's working document outlining steps
states should take to prepare for a bioterrorist attack identifies
the problems inherent in having a large-scale outbreak governed by
different state public health laws and authorities:

"Limited experience with the application and
success of various quarantine measures precludes inclusion of
standardized guidelines for the implementation of such measures
during a bioterrorism event at this time. However, what has been
learned during these [simulated bioterrorism events] is that state
quarantine laws are in most cases dated and varied. Each state must
undertake a review of their own authorities and revise and update
their laws to assure sufficient legal powers to carry out an
effective response."[381]

Though Section 361 authorizes the federal
government to intervene in a state's quarantine procedure if it is
inadequate to control the spread of disease, the reaction of
first-responders to an emergency is clearly of critical importance
in the case of a highly contagious disease.

In addition to the problem of competent and
immediate state response to an outbreak, the interaction of state
and federal agencies is particularly complex. The CDC acknowledges
that this, too, has not yet been ironed out:

"In addition, the division of legal authority
between the state and Federal governments requires rapid and
efficient coordination of actions to provide a public health
response, and should be recognized as an essential part of the
overall smallpox response plan."[382]

In the case of an outbreak involving multiple
states, one can imagine situations in which differing state laws or
differing state interests could collide, forcing federal
authorities to side with one state over another. This could lead to
situations reminiscent of the 19th century yellow fever
shotgun quarantines, where state authorities could not move through
towns determined to protect their people from any intruders.

The difficulties of state-to-state and
federal-state interaction were well-exhibited in a simulation at
the Center for Civilian Biodefense Strategies at Johns Hopkins
University.[383] The simulation involved a bioterrorist attack
of bubonic plague (a far less contagious disease than smallpox) on
a hypothetical city. As the disease expanded due to inadequate
quarantine and hospital facilities, as well as slow diagnosis, the
question of forced isolation arose. Once the disease crossed state
lines, neighboring states began to inhibit interstate travel at
their borders, and those who feared they might be infected fled for
states that did not implement forced quarantines.[384] At the end of the exercise, the participants
came to the frightening conclusion that "We are not, as a nation,
going to be able to invoke multiple quarantines across the country
and enforce them."[385]

Professor of public health law David P. Fidler
argues that the federal separation of public health powers puts the
United States in a particularly weak position to deal with
bioterrorist attacks. In a speech before the Department of Health
and Human Services, Fidler posed as "Rumpole the Malevolent", a
lawyer advising a bioterrorist on what kind of legal system would
render a country most vulnerable to his evil plans. Rumpole advised
his client that:

"[Y]our ideal target would be a federal system that
has placed public health powers predominantly at the local
level....With public health powers vested primarily in local
governments, defenses against bioterrorism are only as strong as
the local governments' commitment to public health. In addition,
with public health powers at the local level, there is more room
for diversity and difference across the nation, which undermines a
harmonized or coordinated approach to a public health
emergency."[386]

Though public health issues have traditionally been
the responsibility of state and local governments in the United
States, Fidler argues that the proper template for
bioterrorism-related law is not public health law, but national
security law. If we view bioterrorism this way, he argues, it
becomes clear that federal control should be the primary approach:
"This country has never developed a legal framework for a national
security threat in which state governments are as or more important
than the federal government."[387] Fidler's argument leads one to the conclusion
that the event of a bioterrorist emergency may not be the opportune
time to experiment with new paradigms for protecting national
security.

Even greater than the separation of legal powers,
however, is the problem of resources. Fidler argues that even if
state laws did not conflict in problematic ways, and if state and
federal authorities were able to coordinate activities effectively,
most state and local public health infrastructures do not possess
the resources necessary to handle a full-scale bioterrorist attack.
In order to implement multiple quarantines, these governments would
require adequate facilities (or at least the ability to claim
adequate facilities quickly), adequate transport vehicles, and
– most importantly – an adequate supply of persons
trained to deal with this sort of crisis. Though state resources
are clearly important in this function, absent a strategy to compel
states to strengthen their public health systems, the federal
government bears the responsibility of ensuring that disease
outbreaks will be competently mitigated. The system of domestic
disease surveillance at the CDC, which collects information from
local health departments and serves as a contact point for local
authorities experiencing health emergencies, presents one tool that
might compensate for state weaknesses. The communicable disease
surveillance system is staffed largely by PHS officers, who also
antibiotics, vaccines, and facilities for diagnosis and treatment
in the event of health emergencies.[388] These officers represent the most specialized
practical expertise in communicable disease control, and Congress
has (in past years) expressed its desire to see that capability
expanded. In 1997, 1998, and 1999, Congress provided funding and a
mandate for the Department of Health and Human Services to increase
the ranks of the PHS Reserve Corps. Despite this mandate, the PHS
Reserve Corps, a collection of trained health specialists
(physicians, dentists, nurses, and environmental engineers) who
could be deployed in a manner similar to military reserves, was not
expanded.[389] Since 1989, the number of reserve officers
has decreased from roughly 6,000 to 2,500.[390]

Conclusion

The perennial fact of finite resources requires
that every society bear some risk of even the most serious threats.
Though we identify weaknesses in our communicable disease security
systems, the relevant question is whether fixing those weaknesses
can be done in a way that does not require neglecting even more
important efforts. It is intuitively clear that this cost-benefit
analysis compelled the decision to reduce medical inspections in
favor of controlled free pratique as the risk of many major
diseases decreased and treatment prospects improved. In that vein,
though we identify the flaws in a system which thoroughly examines
only those aliens who enter the United States on a permanent
immigrant or refugee basis, we also realize that fully examining
all those entering the country could be prohibitively
costly.[391] Further, the diplomatic strain and cost to
the travel industry that could result from requiring travelers to
undergo medical examinations would likely be too great to make this
policy either desirable or politically realistic. Similarly, though
state public health laws and resources may be inadequate to deal
with possible bioterrorist attacks, complete federal takeover of
the state police power to regulate for the purpose of protecting
public health would be Constitutional anathema and fiscally
unthinkable.

Despite the reality of scarce resources and state
police powers, however, Section 361 of the PHS Act directs the
Surgeon General to "make and enforce such regulations as in his
judgment are necessary to prevent the introduction, transmission,
or spread of communicable diseases from foreign countries into the
States or possessions, or from one State or possession into any
other State or possession."[392] Because the long arc of history has shown
that states have not been able to fill this role, the federal
government must take action as the sole protector of its citizens
from the international and interstate transmission of communicable
diseases. Though legal scholars naturally focus on the broad
language of the law and the lawmaking power granted under it, it is
not the lawmaking power that at this moment requires attention. The
legislative history of the bill and the upholding of regulations
against challenge has shown that this lawmaking power is quite
strong. Instead, the single most important word in this statute
today is "enforce". As David Fidler concluded, "People forget that
the 'rule of law' goes beyond, and must go beyond, merely having
legal powers on the books. The legal power to act in the public
good must be supported by resources...to undertake effectively the
legal authority that exists."[393]

What, then, do we make of the broad power allocated
to the federal government to protect against communicable diseases
under Section 361 of the PHS Act? How is it useful in protecting us
from the new sources of communicable diseases that we face today?
Since the law itself provides ample power to protect against
communicable diseases, the improvements needed today are on the
level of enforcement. Comprehensively identifying the specific
needed improvements requires first-hand knowledge of the logistics
involved in medical screening and emergency response which goes
beyond the scope of this paper. There are, however, a few areas in
which specific improvements seem merited even without this detailed
operational experience:

As discussed earlier, it is likely impractical to recommend
full medical inspections of all aliens entering the United States.
However, the current state of medical screening (generally
performed by customs and/or INS officials) may require some
operational revamping. The efficiency of one-stop screening is
clearly desirable, but recent questions about agency-wide
incompetence at the INS may suggest that implementing this policy
through another agency (or through a new subdivision of the
Department of the Treasury) would be preferable to the current
division of responsibilities.

In addition to the question of general agency competence, it
may be necessary to improve the level of medical knowledge of those
performing the screenings of non-immigrant aliens. The current
process, in which international passengers are looked-over by an
INS or Customs officer armed only with minimal training and a list
of obvious signs of disease, guarantees that some travelers with
subtler symptoms will slip through undetected. If inspectors with
real medical training are needed, then the suggestion of an
increased PHS Reserve Corps (whose members might serve this
function for one weekend per month) may help address this problem.
Further, one can imagine creative solutions to the lack of medical
resources, like making medical inspections a duty of residents at
publicly-funded hospitals, or rewarding PHS Reserve service with
some measure of federal loan forgiveness for recent medical school
graduates.

While inspections aim to prevent dangerous contagious diseases
from entering the country, other measures are needed to improve
response capability in the event that an outbreak has occurred. One
approach to this would be to improve informational lines of defense
– so that those exposed to infected airplane passengers can
be quickly notified and tested. One proposal by the World Health
Organization includes a system for requiring airlines to retain
passenger lists for periods longer than the incubation period of
serious diseases. This requirement would clearly complement
anti-terrorism efforts, as it provides one more reliable source of
information on the movement of international travelers.[394]

If we are going to maintain a federal health system in which
states are the first responders in domestic contagious disease
emergencies, then something must be done to ensure that states are
able to serve that function in a way that adequately protects their
citizens. Though excessive federal involvement in this function
would undoubtedly raise objections on the grounds of
unconstitutional involvement in state powers, some involvement is
necessary. An appropriate analogy here is the state control of
public education, with some federal control over basic standards.
Few object to imposed standardized testing proposals as an
interference with states' rights, and some form of emergency
testing of state and local health systems might also be in order.
If states cannot be forced to comply with a basic level of adequate
public health protection, then it may still be possible to
condition federal funding of subsidized health programs on the
maintenance of adequate protection and epidemic event
readiness.

Our ability to protect against new threats can only
be bolstered by a more vigilant contagious disease prevention and
control system. In the post-September 11 world, it is not absurd to
think that a man may step on a plane with the intent and ability to
kill more Americans than were killed even on that day. But instead
of carrying a bomb or a suicide pilot plan, he may carry a weapon
in his body, which is undetectable by screeners, eminently fatal,
and completely invisible – smallpox. With people willing to
sacrifice their lives for the purpose of killing civilians, the
question of "weaponization" of communicable diseases may not be
relevant. If this possibility seems too far-fetched to be relevant
to policy decisions, I would return us to September 10, and ask
whether we would have thought that two planes destroying the World
Trade Center towers and halting capital markets for three days was
similarly far-fetched. It may be, as Publius Syrus wrote, that "He
is most free from danger, who, even when safe, is on his
guard."[395]

The old and new threats to our safety from
dangerous contagious diseases require that we scrutinize our
capabilities to protect against those threats and remedy our
deficiencies. Today, diseases that have plagued the world for
centuries are again on the rise, and in forms which resist
treatment by our most relied-upon drugs. The history and experience
of American federal control over those epidemic diseases helps us
to predict the problems future epidemics may cause, and provides a
rough template for controlling those diseases. The yellow fever
epidemics in the turn of the century South show in stark relief the
counterproductive fear responses of residents in states with
ineffectual health systems, and the importance of quick and
decisive action. The bubonic plague incidents in San Francisco show
the necessity of working with marginalized minority communities
that may be most identified with epidemic diseases, so that they
can cooperate with health officials knowing that their health is a
primary priority. These experiences, as well as the many more
detailed facets of federal contagious disease control law and
policy, can help us to avoid deadly pitfalls as we move into an era
that, in new ways, threatens our society with the diseases of our
past.

Appendix A: Instructions for Federal Medical
Inspectors

Reference 93: "Public Health Screening at U.S.
Ports of Entry, A Guide for Federal Inspectors: U.S. Immigration
and Naturalization Service, U.S. Customs Service, U.S. Department
of Agriculture, APHIS, U.S. Fish and Wildlife Service." U.S.
Department of Health and Human Services, Public Health Service,
Centers for Disease Control and Prevention, National Center for
Infectious Diseases, Division of Quarantine. Revised March
2000.

"The U.S. Public Health Service (PHS) has statutory and
regulatory responsibility to prevent the introduction,
transmission, and spread of communicable disease from foreign
countries into the United States. Applicable regulations are found
in 42 CFR, Parts 34 and 71. These responsibilities are delegated to
the Centers for Disease Control and Prevention (CDC), National
Center for Infectious Diseases, Division of Quarantine."

"Quarantine Stations are located at eight major international
airports; each Quarantine Station has responsibility for all ports
in an assigned geographic area."

"The Division of Quarantine is empowered to apprehend, detain,
medically examine or conditionally release individuals (including
U.S. citizens) suspected of having one of the following diseases:
Cholera and suspected Cholera, Diphtheria, Infectious Tuberculosis,
Plague, Suspected Smallpox, Yellow Fever, and Suspected Viral
Hemorrhagic Fevers, such as Lassa, Marburg, Ebola, Congo-Crimean,
and others not yet isolated or named."

"Foreign Quarantine regulations require that the death or
illness of an arriving international passenger or crew member be
reported by the captain of the arriving ship or airplane to the
Quarantine Station having responsibility for the port of entry;
however, illnesses are not always reported."

"Inspection of Arriving Persons : Observe all arriving
passengers and crew for signs and symptoms of illness, such as
rash, unusually flushed or pale complexion, jaundice (unusual
yellowing of skin and eyes), shivering, profuse sweating, diarrhea,
and inability to walk without assistance. / A person is considered
to be ill in terms of Foreign Quarantine regulations when
signs/symptoms meet the following criteria:

Temperature of 100 degrees Fahrenheit or greater, which is
accompanied by one or more of the following: rash, jaundice,
glandular swelling, or which has persisted for 2 days or more.

Diarrhea severe enough to interfere with normal activity or
work..."

"Detain ill passengers and crew, and ask for details about
symptoms and itinerary. At a port of entry where a Quarantine
Station is staffed, that Station should be notified and a
quarantine inspector will investigate. If there is no quarantine
inspector at your port, the appropriate Quarantine Station should
be notified. The Quarantine Station will release or conditionally
release the ill person, or, if the circumstances warrant, call a
physician to conduct an examination and recommend appropriate
action."

"Check Itineraries : It is sometimes necessary to check
the itinerary of arriving persons whether or not they are
ill because of a known communicable disease outbreak abroad.
Specific itineraries may be connected with a need for appropriate
preventive measures. If this situation should arise, CDC will
direct that each arriving person be asked if he/she has been in the
infected country within a specified number of days. If so, the
person will either be given printed information or referred to the
appropriate Quarantine Station."

"Health Alert Notice : A Health Alert Notice (Form CDC
75.8) provides general guidance for travelers arriving from areas
where they may have been exposed to a communicable disease. When
directed to do so, issue a Health Alert Notice to each arriving
person or to each adult in a family group. A Health Alert Notice
need not be issued to persons who routinely cross at U.S.-Mexican
border and U.S.-Canadian border ports of entry."

"Medical Inspection of Arriving Aliens : The Immigration
Act of 1996 revised the health-related grounds for inadmissibility
under Section 212(a) of the Immigration and Nationality Act, as of
September 30, 1996. Section 212(a) provides that any alien is
inadmissible who (1) is found to have a communicable disease of
public health significance, (2) fails to present documentation of
having received vaccination against vaccine-preventable diseases,
(3) has or had a physical or mental disorder with associated
harmful behavior that poses or may pose a threat to the property,
safety, or welfare of the alien or others, or (4) is a drug abuser
or addict."

"Medical Documents Missing or Incomplete: Inspectors
should immediately advise the appropriate Quarantine Station when
an immigrant arrives without medical documents or with incomplete
medical documents."

"X-rays : When processing an alien, DO NOT keep his/her
chest X-ray film. This is an important medical document that the
alien should retain as part of his/her permanent health
record."

"Medical Holds : Refer to the appropriate Quarantine
Station all aliens for whom a "Medical Hold" should be issued.
Candidates for a "Medical Hold" are:

All aliens who are not routinely required to have a medical
examination and who, upon arrival in the United States, exhibit a
physical condition that may be inadmissible under Section 212(a) of
the Immigration and Nationality Act.

All aliens who require a medical examination overseas
(immigrants, refugees, fiancé[e]s of U.S. citizens and their
minor children), but who arrive without evidence or with incomplete
evidence of having had one performed, or with documentation that
has expired. Satisfactory evidence can consist of a properly
completed 'Medical Examination of Applicants for United States
Visas' (Optional Form 157), with results of chest X-ray and
serologic tests for syphilis and HIV infection indicated. Chest
X-ray and serologic tests are required for aliens 15 years of age
and older."

"The Class A or B Condition Stamp : All aliens with a
Class A condition or a Class B condition, including tuberculosis,
not infectious; Hansen's disease (leprosy), not infectious. These
aliens should have a stamp imprinted on the face of their
visa....Consular officers should stamp ...when an immigrant has a
medical condition of public health concern, but sometimes this step
is inadvertently omitted. The inspector should check all [visas],
regardless of whether the "Attention PHS" stamp is present."

"Refugees and Asylees : Refugees and asylees normally
arrive at ports where quarantine inspectors are assigned, but this
may not always be the case. Notify the appropriate Quarantine
Station of all refugees and asylees entering the United States for
the first time."

"Importations of Public Health Importance :

"Animals : Of the animals commonly kept as pets, only
dogs, cats, monkeys, and turtles are specifically mentioned in the
Foreign Quarantine Regulations. Other species are not subject to
PHS restrictions. The requirements of other agencies, such as the
U.S. Department of Agriculture and the U.S. Fish and Wildlife
Service, may also have an impact on the entry of pets into the U.S.
/ The general requirement is that all dogs, cats, monkeys, and
turtles intended for importation into the United States shall be
visually examined by inspecting personnel. Only those that are free
of gross evidence of infectious diseases may be admitted. Animals
that show signs of illness (e.g., examined, tested, or treated by a
licensed veterinarian at the owner's expense. Contact the
appropriate Quarantine Station when the above conditions are
present. Specific requirements are as follows:"

"Cats : Cats are subject only to the general
requirements for entry as stated above. No rabies vaccination or
health certificate is required for entry."

"Dogs : Regardless of age, dogs may be
released without restriction if they appear to be healthy and have
been exclusively in a rabies-free area for at least 6 months
immediately preceding arrival or since birth. Dogs arriving from
countries other than those listed as rabies-free may be admitted if
they meet all of the following requirements:

- Greater than 3 months of age

- Free of gross evidence of infectious disease

- Accompanied by a valid certificate of vaccination
against rabies."

"Monkeys and Other Nonhuman Primates :

- Pet Monkeys Banned : Live monkeys and
other nonhuman primates may not be imported for use as pets under
any circumstances. They may only be imported into the United States
for bona-fide scientific, educational, or exhibition purposes.
Importers must be registered with CDC, and are responsible for
implementing specific disease control measures while the animals
are imported and cleared, transported to the importer's facilities,
and quarantined for a 31-day period. Registered importers must also
hold a special permit, issued by CDC, to import cynomolgus, rhesus
or African green monkeys.

- Verify Importer Status : Contact the
appropriate Quarantine Station when primates are presented for
entry to verify that the importer is currently registered as an
importer of nonhuman primates and that, if required, a special
permit has been issued.

- Illegally Imported Monkeys : If a monkey
owned by a passenger arrives hand-carried or as baggage, isolate
the animal and call the Quarantine Station for advice immediately.
Do Not handle the animal or allow others near its
enclosure."

- Seizure: Inadmissible nonhuman primates
are seized and re-exported to the country of origin, donated to
facilities approved by CDC, or destroyed."

- Animal Acts: Nonhuman primates that are
part of a legitimate animal performing act may, if appropriately
registered with CDC, be transported from and returned to the United
States. The CDC registration for these acts is in the form of a
letter on CDC letterhead..."

"Turtles: Live turtles with a carapace
(shell) length of less than 4 inches (measured in a straight
line from front to back) and viable turtle eggs may not be
imported into the United States for commercial purposes . An
individual may import turtles of less than 4-inches in shell length
only if the importation is not for commercial
purposesand the importation includes no more than one
lot containing fewer than seven live turtles, fewer than seven
viable turtle eggs, or any combination thereof totaling fewer than
seven. CDC may issue a permit for an importation of more than the
permitted number when the importation is for a bona-fide
noncommercial scientific or exhibition purpose. / CDC has no
restrictions on the importation of live turtles with a carapace
length of greater than 4 inches."

"Goatskin Products from Haiti : Untanned
goatskin products from Haiti may not be imported into the United
States because they may carry anthrax. These items must be seized
and incinerated. Precautions (gloves and mask, at a minimum) must
be observed when goatskin products from Haiti are handled."

"Human Remains: Examine the death
certificate to determine the cause of death. Admit unless the
person died of a quarantinable disease (cholera, plague, yellow
fever, infectious tuberculosis, diphtheria, suspected smallpox, or
suspected viral hemorrhagic fever), in which case the casket must
be hermetically sealed. If there is no evidence that the casket is
hermetically sealed, hold and contact the appropriate quarantine
station for instructions. Ashes may be admitted without
restriction, regardless of the cause of death."

"Permits Required for Etiologic Agents and Vectors of
Disease : It is impractical to list the several hundred species
of etiologic agents and vectors for which a permit is required. The
intent of the permit requirement is to control the importation of
etiologic agents and vectors and ensure that permitted shipments
are adequately packaged. Any shipment for which a permit has been
issued may be immediately released. The following classes of
imports require a permit issued by CDC:

- Any living insect or other living arthropod known
to be or suspected of being infected with any disease transmissible
to humans; also, if alive, any bedbugs, fleas, flies, lice, mites,
mosquitoes, or ticks, even if uninfected. This includes eggs,
larvae, pupae, and nymphs, as well as adult forms

- Any animal known to be or suspected of being
infected with any disease transmissible to humans

- All live bats

- Unsterilized specimens of human and animal tissue
(including blood), body discharges -and excretions, or similar
material, when known to be or suspected of being infected with
disease transmissible to humans

Any culture of living bacteria, virus, or similar organism
known to cause or suspected of causing human diseases

[1] 42 USC 264, 1944 version. See also March
1,2,3,7,8,9,10, and 14, 1944: Hearing before a Subcommittee of the
Committee on Interstate and Foreign Commerce, House of
Representatives, 78th Congress, 2d Session, on H.R.
3379: "A Bill to Codify the Laws Relating to the Public Health
Service, and for Other Purposes", pp. 16.

[10] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 66. A particularly vicious epidemic of yellow fever
in 1793 in then-capital of Philadelphia caused the federal
government to cease operations. Spiegel, Jayson L., "Reinforce Our
First Line of Defense". The Washington Post, Sunday, January 20,
2002. B2.

[11] Fear of smallpox was complicated by the fear of
its new potential solution – inoculation. Angry crowds burned
a hospital in Salem, Massachusetts in 1774 in order to prevent its
use as an inoculation hospital. Williams, Ralph Chester, M.D.,
The United States Public Health Service, 1798-1950 .
Commissioned Officers Association of the United States Public
Health Service, Washington, D.C., 1951, pp. 67.

[12] Gibbs, George. Memoirs of the administrations
of Washington and John Adams. New York: printed for the
subscribers, 1846, vol. 1, pp. 110. Quoted in Smith, Geddes,
A Plague on Us , The Commonwealth Fund, Oxford
University Press, 1941, pp. 12.

[16] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 163-164.

[18] This action was taken in response to the yellow
fever outbreak in Philadelphia that year. Williams, Ralph Chester,
M.D., The United States Public Health Service, 1798-1950 .
Commissioned Officers Association of the United States Public
Health Service, Washington, D.C., 1951, pp. 68.

[20] "An Act for the Relief of Sick and Disabled
Seamen", July 16, 1798, 1 Stat. L. 605. www.nih.gov, NIH timeline,
and Mullan, Fitzhugh, Plagues and Politics: The Story of the
United States Public Health Service . Basic Books, Inc., New
York, 1989, pp. 17.

[22] The biography of the bill's major Congressional
proponent gives some support to the notion that the bill's framers
contemplated the Marine Hospital Service's involvement in
preventing the spread of contagious diseases. "Congressman Edward
Livingston, of New York, from the Committee on Commerce and
Manufacturing, reported a bill for the relief of sick and disabled
seamen. ....[Livingston] served as a member of Congress from New
York from 1795 to 1801. He was selected by Thomas Jefferson as
United States District Attorney for New York in 1801. He became
Mayor of New York City in August of that year. During 1803 he
rendered conspicuous service in the yellow fever epidemic that
occurred in New York City and contracted the disease." Williams,
Ralph Chester, M.D., The United States Public Health Service,
1798-1950 . Commissioned Officers Association of the United
States Public Health Service, Washington, D.C., 1951, pp. 164.

[24] "Be it enacted by the Senate and House of
Representatives of the United States of America in Congress
assembled, That the quarantines and other restraints, which shall
be required and established by the health laws of any state, or
pursuant thereto, respecting any vessels arriving in, or bound to,
any port or district thereof, whether from a foreign port or place,
or from another district of the United States, shall be duly
observed by the collectors and all other officers of the revenue of
the United States, ....and all such officers of the United States
shall be, and they hereby are, authorized and required, faithfully
to aid in the execution of such quarantines and health laws,
according to their respective powers and precincts, and as they
shall be directed, from time to time, by the Secretary of the
Treasury of the United States." From "An Act respecting Quarantine
and Health Laws", February 25, 1799. Fifth Congress, Session III,
Ch. 12.

[29] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 70.

[30] "Be it enacted ... That if, in the
opinion of the Secretary of the Treasury, the revenue cutters,
revenue boats, or revenue officers, employed or authorized to be
employed for the purposes of the revenue, should be insufficient to
aid in the execution of the quarantine and health laws of any
state, or the regulations made pursuant thereto, the said Secretary
may cause to be employed such additional revenue boats and revenue
officers as he may deem necessary for that purpose, the said
revenue boats to be of such size and description as he may see
proper. This act to continue in force until the fourth of March,
one thousand eight hundred and thirty-three. – Approved, July
13, 1832." From "An Act to enforce quarantine regulations", July
13, 1832. Twenty-Second Congress, Session I, Ch. 202, 203, 204.

[34] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 165.

[35] "Joint Resolution authorizing the Secretaries of
War and Navy to place Hulks and Vessels at the Disposal of the
Commissioners of Quarantine, or other proper Authorities, at Ports
of the United States, for one Year.", March 24, 1866. Thirty-Ninth
Congress, Session I, Res. 16.

[37] "Be it resolved ... That the Secretary of
the Treasury be, ...authorized to make and carry into effect such
orders and regulations of quarantine as, in his opinion, may be
deemed necessary and proper, in aid of State or municipal
authorities, to guard against the introduction of cholera into the
ports of the United States; and the Secretary of the Treasury is
further authorized to direct the revenue officers and the officers
commanding revenue cutters to aid in the execution of such
quarantine, and also in the execution of the health laws of the
States respectively in such manner as may to him seem
necessary....provided the authority hereby granted shall expire on
the first Monday in January, [1867]. – Approved May 26,
1866." "Joint Resolution respecting Quarantine and Health Laws.",
May 26, 1866. Thirty-ninth Congress, Session I, Res. 42. During
this time, federal health officers and Congress were considering
the reorganization and expansion of the Marine Hospital Service.
The Act of June 29, 1870 provided for reorganization of the Marine
Hospital Service, and established a central office in Washington
for the agency. Williams, Ralph Chester, M.D., The United States
Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 165.

[38] "Joint Resolution providing for a more effective
System of Quarantine on the Southern and Gulf Coasts.", June 6,
1872. Forty-Second Congress, Session II, Res. 6.

[40] Mullan, Fitzhugh, Plagues and Politics: The
Story of the United States Public Health Service . Basic Books,
Inc., New York, 1989., pp. 23-25.

[41] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 113.

[42] "Joint Resolution providing for a more effective
System of Quarantine on the Southern and Gulf Coasts.", June 6,
1872. Forty-Second Congress, Session II, Res. 6.

[43] Ibid. A later statute authorized similar action
in response to another outbreak in March of 1874. Act of March 25,
1874. Williams, Ralph Chester, M.D., The United States Public
Health Service, 1798-1950 . Commissioned Officers Association
of the United States Public Health Service, Washington, D.C., 1951,
pp. 115.

[44] Mullan, Fitzhugh, Plagues and Politics: The
Story of the United States Public Health Service . Basic Books,
Inc., New York, 1989., pp. 23-25.

[45] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 72.

[46] "Duties of the United States Officers with
Reference to Quarantine and the Public Health", Department No. 90,
September 8, 1874. See also, Williams, Ralph Chester, M.D., The
United States Public Health Service, 1798-1950 . Commissioned
Officers Association of the United States Public Health Service,
Washington, D.C., 1951, pp. 75.

[52] One of the only first-hand accounts of this
epidemic came from a telegraph operator in Grenada, Mississippi.
His story is told here by Geddes Smith, in his book Plague on
Us :

"The first cases of sickness appearing in the
little town were dismissed as 'bilious fever.' The local board of
health on August 11 reluctantly admitted the presence of an
epidemic. Three days later all but 700 of the 2,200 white
inhabitants had fled. Only the undertakers' shops and drugstores
were open. With windows closed, trains went through the village
without slackening speed. Except for physicians and nurses from
Memphis and New Orleans, the town was cut off from the world. On
August 15 there were 300 white people left, half of whom were sick.
Two days later there were 200 and only 30 or 40 of these persons
were well. The telegrapher in writing his story said, 'Surely the
end cannot be far and the chapter must be soon closed.' A few days
later he recorded that 'No one had dared to enter the town for
several days. When we are gone, God only knows what will become of
the stricken.'

"On the 22nd of August, word reached the
village that the War Department was sending tents for refugees but
the question was who would put them up. 'There are not 20 active
men in town.' The telegrapher indicated that there was one corpse
and four sick persons in the house where he lived. The dispatches
from the telegrapher grew more brief. On August 29, there was
little more than a list of the recent dead, 22 in 24 hours, and the
telegrapher signed off with the despairing statement, 'In spite of
all the doctors can do, death seems to reign supreme.' Two days
later, he too was dead. The story is still told in Grenada that he
died at his telegraph key. " Smith, Geddes, A Plague on
Us , The Commonwealth Fund, Oxford University Press, 1941, pp.
21.

[68] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 74-75. The federal government's aid in sending
medical officers to help respond to yellow fever epidemics would
not open them to liability for the seizure of property in the
course of responding to emergencies, according to Judge Atkinson in
C.B. McClenny v. United States .
McClenny involved a yellow fever epidemic in
Macclenny, Florida, in response to which the mayor invited a
federal health officer to help stop the outbreak. The city health
officers, on the advice of the federal officer, seized the
plaintiff's hotel for use as a quarantine hospital, which seriously
decreased the subsequent value of the property. Despite this, Judge
Atkinson held: "If the Government can not lend a kindly, helping
hand to its people in the time of distress by sending expert
physicians to diagnose malignant diseases, when called upon so to
do, without being held financially responsible for a part or all of
the expenses which must necessarily follow epidemic maladies, it
would be either financially crippled or must refuse to answer such
calls from its citizens." C.B. McClenny v. The United
States , 45 Ct. Cl. 305; March 28, 1910. Congressional, No.
13156, pp. 314

[69] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 83. The supremacy of state health laws was
confirmed by the Supreme Court in Morgan's S.S. Co. v.
Louisiana Board of Health . In this case, the Court
determined that "Unless and until Congress enacts a law confining
health laws to a national board, or to local boards, thereby
abrogating state laws on the subject, the state laws relating
thereto are valid." The language did, however leave room for
Congress to take such action in the future, thereby implying that
federalizing health laws might be found Constitutional by the
Court. Morgan's S.S. Co. v. Louisiana Board of Health
(1886), 118 U.S. 455.

[70] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 165.

[72] A powerful testament to Woodworth's ability to
build coalitions across traditional divides was his success in
creating good relations with State and local health officers in the
South during the yellow fever epidemics. In addition to overcoming
the southern states' usual aversion to any federal involvement with
traditional state powers, Woodworth also overcame the more virulent
hatred associated with his having been Sherman's Chief Medical
Officer during the "march to the sea". Williams, Ralph Chester,
M.D., The United States Public Health Service, 1798-1950 .
Commissioned Officers Association of the United States Public
Health Service, Washington, D.C., 1951, pp. 82.

[77] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 78-79.

[83] The penalties provided for in the Act included
"a fine of not more than three hundred dollars" and/or
"imprisonment for a period of not more than thirty days". The
quarantine stations authorized by the Act included those at the
Delaware Bay, at Cape Charles on the Chesapeake Bay, on the Georgia
coast, at Key West, at San Diego Harbor, at San Francisco Harbor,
at Port Townsend, and at the entrance to Puget Sound. "An Act to
perfect the quarantine service of the United States.", August 1,
1888. Fiftieth Congress, Session I, Ch. 727.

[87] "Be it enacted ...That whenever it shall be made
to appear to the satisfaction of the President that cholera,
yellow-fever, small-pox, or plague exists in any State or
Territory, or in the District of Columbia, and that there is danger
of the spread of such disease into other States, Territories, or
the District of Columbia, he is hereby authorized to cause the
Secretary of the Treasury to promulgate such rules and regulations
as in his judgment may be necessary to prevent the spread of such
disease from one State or Territory into another, or from any State
or Territory into the District of Columbia, or from the District of
Columbia into any State or Territory, and to employ such inspectors
and other persons as may be necessary to execute such regulations
to prevent the spread of such disease. The said rules and
regulations shall be prepared by the Supervising Surgeon General of
the Marine Hospital Service under the direction of the Secretary of
the Treasury." 51st Congress, Session I, Chapter 51,
March 27, 1890: "An Act to prevent the introduction of contagious
diseases from one State to another and for the punishment of
certain offenses."

[88] 26 Stat. 1084. Bennett, Victoria L., "Medical
Examination of Aliens: A Policy with Ailments of its Own?"
University of Arkansas at Little Rock Law Journal, Fall 1989, v.
12, n. 4, pp. 739-753, pp. 741. Though the Court had ruled that
states could not enact their own immigration restrictions, a decade
later, it confirmed that federal immigration laws did not abrogate
state quarantine laws.Compagnie Francaise De Navigation A
Vapeur v. Louisiana State Bd. Of Health (1902) 186 US 380,
46 L Ed 1209, 22 S Ct 811.

[92] Letter from the Secretary of the Treasury, In
response to Senate resolution of January 28, 1893, relative to
regulations to prevent the introduction of contagious or infectious
diseases at the port of New York." February 8, 1893. 52d Congress,
Second Session, Ex. Doc. No. 52, pp. 2. Circular. 1892.
Department No. 112 : "Vessels from cholera-infected districts
to be forbidden entry unless provided with certificates of
disinfection." The regions covered by this regulation included:
"Caucasus, eastern Russia, Persia, Calcutta, and the western
littoral of the Red Sea". A later order, Circular 1892.
Department No. 141, added Russia to this list.

[94] Letter from the Secretary of the Treasury, In
response to Senate resolution of January 28, 1893, relative to
regulations to prevent the introduction of contagious or infectious
diseases at the port of New York." February 8, 1893. 52d Congress,
Second Session, Ex. Doc. No. 52, pp. 4. Circular. 1892. Department
No. 143. Marine Hospital Service: "Consular certificates of
disinfection required with all importation of rags from foreign
ports."

[98] Letter from the Secretary of the Treasury, "In
response to Senate resolution of January 28, 1893, relative to
regulations to prevent the introduction of contagious or infectious
diseases at the port of New York." February 8, 1893. 52d Congress,
Second Session, Ex. Doc. No. 52, pp. 5-6. Circular. 1892.
Department No. 150: "Quarantine restrictions upon immigration to
aid in the prevention of the introduction of cholera into the
United States."

[105] Letter from the Secretary of the Treasury, In
response to Senate resolution of January 28, 1893, relative to
regulations to prevent the introduction of contagious or infectious
diseases at the port of New York." February 8, 1893. 52d Congress,
Second Session, Ex. Doc. No. 52, pp. 7.

[107] Letter from the Secretary of the Treasury, "In
response to Senate resolution of January 28, 1893, relative to
regulations to prevent the introduction of contagious or infectious
diseases at the port of New York." February 8, 1893. 52d Congress,
Second Session, Ex. Doc. No. 52, pp. 8.

[108] Letter from the Secretary of the Treasury, "In
response to Senate resolution of January 28, 1893, relative to
regulations to prevent the introduction of contagious or infectious
diseases at the port of New York." February 8, 1893. 52d Congress,
Second Session, Ex. Doc. No. 52, pp. 8.

[117] Letter from the Secretary of the Treasury, In
response to Senate resolution of January 28, 1893, relative to
regulations to prevent the introduction of contagious or infectious
diseases at the port of New York." February 8, 1893. 52d Congress,
Second Session, Ex. Doc. No. 52, pp. 7.

[118] Committee on Epidemic Diseases Report to
accompany S. 2707, granting additional quarantine powers and
imposing additional duties upon the Marine Hospital Service.
January 4, 1893. 52d Congress, Second Session, Report No. 1144, pp.
1. This legislation was shepherded through Congress by Congressman
Isidor Rayner of Maryland, from the House Interstate and Foreign
Commerce Committee and by Senator Wilkinson Call of Florida and
Senator Jacob H. Gallinger (a physician) of New Hampshire from the
Senate Committee on Epidemic Diseases. Williams, Ralph Chester,
M.D., The United States Public Health Service, 1798-1950 .
Commissioned Officers Association of the United States Public
Health Service, Washington, D.C., 1951, pp. 166.

[129] This support was widespread, including a
"national conference of State boards of health, [and] an
organization of the sanitarians of the United States, Mexico, and
Canada." Committee on Epidemic Diseases Report to accompany S.
2707, granting additional quarantine powers and imposing additional
duties upon the Marine Hospital Service. January 4, 1893. 52d
Congress, Second Session, Report No. 1144, pp. 2.

[154] The beginning of the century also saw stepwise
expansion of the purview of federal quarantine, annexing authority
over the Philippines, Puerto Rico, and the Hawaiian Islands in
1900. In 1917, the Virgin Islands were also included by executive
order. Williams, Ralph Chester, M.D., The United States Public
Health Service, 1798-1950 . Commissioned Officers Association
of the United States Public Health Service, Washington, D.C., 1951,
pp. 87.

[155] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 97.

[158] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 124-125.

[159] Mullan, Fitzhugh, Plagues and Politics: The
Story of the United States Public Health Service . Basic Books,
Inc., New York, 1989, pp. 39-40 and 124-125.

[160] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 122.

[165] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 125-126.

[166] Mullan, Fitzhugh, Plagues and Politics: The
Story of the United States Public Health Service . Basic Books,
Inc., New York, 1989, pp. 44-45.

[168] June 19, 1906, Chapter 3433 – "An Act to
further protect the public health and make more effective the
national quarantine." S. 4250, pp. 299.

[169] History of Quarantine, from CDC web site:
http://www.cdc.gov/ncidod/dq/history.htm
. The gradual trend away from city and state control of quarantine
stations toward federal control may have, in part, been encouraged
by a ruling making cities financially liable for the costs of
wrongful detention of ships. In Sumner v.
Philadelphia , Judge McKennan ruled that the city of
Philadelphia must compensate a shipowner whose vessel had been
detained upon wrongful suspicion of yellow fever. Sumner v.
Philadelphia (1873) 23 F. Cas. 392. The last port to turn
over quarantine control to the Public Health Service was New York,
though even this port had been under federal control for limited
periods and for limited purposes. In 1911, in response to
cholera-infected passengers arriving at the Port of New York from
Italy, the Public Health and Marine Hospital Service sent officers
to that station. The officers put into place a system of
bacteriological examination of the passengers from Italy. Williams,
Ralph Chester, M.D., The United States Public Health Service,
1798-1950 . Commissioned Officers Association of the United
States Public Health Service, Washington, D.C., 1951, pp. 88.

[170] The Marine Hospital Service changed its name
to the Public Health Service in 1912. Satcher, David, M.D., Ph.D.
"The History of the Public Health Service and the Surgeon General's
Priorities," 54 Food Drug L.J. 13, 1999, pp. 13.

[171] Mullan, Fitzhugh, Plagues and Politics: The
Story of the United States Public Health Service . Basic Books,
Inc., New York, 1989, pp. 40.

[184] Because of the ease of effective treatment,
and the relative difficulty of disease transmission, trachoma is no
longer grounds for immigrant exclusion. Bennett, Victoria L.,
"Medical Examination of Aliens: A Policy with Ailments of its Own?"
University of Arkansas at Little Rock Law Journal, Fall 1989, v.
12, n. 4, pp. 739-753, pp. 745.

[197] District Judge Patterson wrote: "...[M]y first
impression was that the relator was being excluded for a trifling
ailment and that the case was one where the courts ought to give
relief. A more careful study has convinced me that whatever the
true character of the ailment may be, and as to that I say nothing,
the courts are foreclosed from interfering with the decision of the
immigration officials where the medical certificate on arrival
shows that the alien is afflicted with a loathsome or dangerous
contagious disease." United States ex re. Frumcair v.
Reimer , 25 F. Supp. 552, 554.

[202] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 88.

[203] In an typical year, medical officers at the
Baltimore station inspected about 700 ships, over 29,000 persons,
and fumigated over 300 ships, amounting to between three and five
percent of the total federal quarantine work. PHS Chronicles: "A
Gate to the City: The Baltimore Quarantine Station, 1918-1928"
, Public Health Reports, March-April 1995, Vol. 110, No. 2, pp.
219.

[206] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 108.

[207] Division of Quarantine publication.
www.cdc.gov/dq, pp. 5. The situations this measure intended to
prevent is exemplified by the following not uncommon experience
recollected by a medical officer in the earlier years at Ellis
Island: "A Scandinavian farmer might spend years in Minnesota
earning enough money to pay the passage for his wife and their five
children. When they would finally arrive, and the long separated
family would be reunited, ours would be the painful duty of
singling out one of the children, and of saying, 'She has trachoma.
She cannot enter' The mother and the rest of the children would
often have to return to Europe with the diseased one, and, until
the boat sailed, the father, wretched and unhappy, would haunt the
detention quarters, while his family kept up a constant wailing and
crying." Mullan, Fitzhugh, Plagues and Politics: The Story of
the United States Public Health Service . Basic Books, Inc.,
New York, 1989, pp. 45.

[208] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 110.

[213] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 93-94.

[214] Conversation with Dr. Ray P. Vanderhook,
3/27/2002, recalling Public Health Service medical inspector Frank
Stiso. At least by the mid-1960's, airplane inspectors were trained
so that they possessed some medical knowledge, but not educated as
physicians. If an inspector noticed a sign of disease in a
traveler, he called the PHS Medical Officer in Charge of the
station, who then came to inspect the passenger. The initial
inspections, however, were performed by these trained laymen.

[216] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 93-94.

[228] The Plant Quarantine Act has been used for
purposes as broad as a plant quarantine of the entire state of
Hawaii. In the case U.S. v. Schafer , the Court of
Appeals for the Ninth Circuit upheld the Secretary of Agriculture's
decision to prohibit the transportation of plants from Hawaii
without prior inspection, and to require inspection of "all baggage
and other personal effects of passengers...of...aircraft moving
from Hawaii...to ascertain if they contain any of the articles or
plant pests prohibited movement by the quarantine...." U.S.
v. Schafer (1972) 461 F. 2d 856, 857.

[229] 21 USCS Sec.123. Title 21. Food and Drugs,
Chapter 4. Animals, Meats, and Meat and Dairy Products, "Prevention
of Introduction and Spread of Contagion,". Act of March 3, 1905,
ch. 1496, 33 Stat. 1264, entitled "An Act to enable the Secretary
of Agriculture to establish and maintain quarantine districts, to
permit and regulate the movement of cattle and other live stock
therefrom, and for other purposes".

In 1973, the Court of Appeals for the Fifth Circuit
held that the federal government was not liable for damages to
animals which resulted from the "forced exposure of healthy animals
to diseased animals within the quarantine area". Rey v.
United States (1973) 484 F. 2d 45, 48.

[230] "The Secretary of Agriculture has the power to
determine in each epidemic whether shipments can be made
consistently with public safety at all and, if so, upon what
conditions." United States v. Louisville & N.R.
Co. (1910) 176 F 942.

[231] "Congress has the power to enforce a
quarantine to prevent the spread of diseases among livestock
involved in interstate commerce." Whipp v. United
States (1931) 47 F 2d 496.

[233] "It is finally urged against this conviction
that the statute ...is unconstitutional in that Congress had no
power to make it a duty of a federal employee to dip cattle and
suppress disease among cattle within a State; ...that such
legislation by Congress can not be sustained as a regulation of
interstate commerce, because it is not confined to interstate
commerce and the cattle treated were not in interstate commerce. It
is very evident from the Act of 1884 and the subsequent legislation
and the regulations issued under them that everything authorized to
be done was expressly intended to prevent the spread of disease
from one State to another by contagion, which of course means by
the passage of diseased cattle from one state to another. This is
interstate commerce."Thornton et al. v. United States
(1926) 271 U.S. 414, 424.

[234] "A dairy farmer whose cattle were destroyed
following the discovery by the Department of Agriculture that some
were infected with tuberculosis was entitled to compensation in the
amount prescribed by regulations promulgated under 21 USC 114(a) as
opposed to fair market value prescribed by 21 USC 134(a) where
Secretary of Agriculture did not declare national emergency as
contemplated by 21 USC 134(a)(b), and where cattle were not moving
interstate or into the United States." Loftin v. United
States (1984) 785 F. 2d 1117.

[236]Must Hatch Incubator Co., v.
Patterson (1928) 27 F 2d 447. The Department of
Agriculture's power to destroy animals who were infected with or
exposed to communicable disease of poultry. Slocum v. United
States (1975) 515 F. 2d 237.

In 1979, the Department of Agriculture prohibited
the interstate transport of swine with pseudorabies virus, and
indirectly regulated intrastate quarantine and inspection of swine
by severely restricting the interstate commerce in swine if the
state did not implement a quarantine system that met federal
standards. 9 C.F.R. 85.7

[237] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 99.

[238] Executive Order No. 5264, January 24, 1930.
Williams, Ralph Chester, M.D., The United States Public Health
Service, 1798-1950 . Commissioned Officers Association of the
United States Public Health Service, Washington, D.C., 1951, pp.
99.

[239] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 99.

[240] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 100. The psittacine bird regulation led to a
variety of litigation. The Ninth Circuit Court of Appeals, in
Duke, Ballard, and Buono v. United States (1958) 255
F. 2d 721, ruled on the contention of psittacine bird smugglers
that they should be subject only to the penalty under the PHS Act
for violating quarantine laws, rather than the harsher penalty
under the federal smuggling statute. The defendants claimed that
the Public Health Service regulation preempted the smuggling
statute as applied to this case. In rejecting this claim, Judge Fee
ruled that "these contentions have no validity. Appellants may have
committed two crimes, one a misdemeanor and the other a
felony....If there is any conflict between the statute and the
regulation, the former prevails." Clifford L. Duke, Jr.,
Louis Glenn Ballard and Vic Buono, v. United States of
America , 255 F. 2d 721; January 7, 1958. (U.S. Court of
Appeals, Ninth Circuit), pp. 723-724.

[241] Parascandola, John, "From MCWA to CDC –
origins of the Centers for Disease Control and Prevention; Malaria
Control in War Areas". Public Health Reports, No. 6 Vol. 111,
November 21, 1996. pp. 549.

[242] Each quarantine station still had a Medical
Officer in Charge, who could be called in to confirm the opinion of
the inspector in questionable or threatening cases. Williams, Ralph
Chester, M.D., The United States Public Health Service,
1798-1950 . Commissioned Officers Association of the United
States Public Health Service, Washington, D.C., 1951, pp. 93.

[243] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 95.

[244] The MCWA had typhus added to is purview in
1944, and the agency was gradually granted authority over the
control of yellow fever, amoebic dysentery, diarrheal disease,
polio, venereal disease, and tuberculosis by 1960. Parascandola,
John, "From MCWA to CDC – origins of the Centers for Disease
Control and Prevention; Malaria Control in War Areas". Public
Health Reports, No. 6 Vol. 111, November 21, 1996, pp. 549.

[247] Indeed, no witness at the hearing before the
Interstate and Foreign Commerce Committee opposed the bill's
passage. April 20, 1944, Report [to accompany H.R. 4624] on
"Consolidation and Revision of Laws Relating to the Public Health
Service", by Mr. Bulwinkle, from the Committee on Interstate and
Foreign Commerce, 78th Congress, 2d Session, House of
Representatives, Report No. 1364, pp. 2.

[248] April 20, 1944, Report [to accompany H.R.
4624] on "Consolidation and Revision of Laws Relating to the Public
Health Service", by Mr. Bulwinkle, from the Committee on Interstate
and Foreign Commerce, 78th Congress, 2d Session, House
of Representatives, Report No. 1364, pp. 1.

[249] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 138.

[250] Section (a) also provides: "For the purposes
of carrying out and enforcing such regulations, the Surgeon General
may provide for such inspection, fumigation, disinfection,
sanitation, pest extermination, and other measures as in his
judgment may be necessary." March 1,2,3,7,8,9,10, and 14, 1944:
Hearing before a Subcommittee of the committee on Interstate and
Foreign Commerce, House of Representatives, 78th
Congress, 2d Session, on H.R. 3379: "A Bill to Codify the Laws
Relating to the Public Health Service, and for Other Purposes", pp.
16.

[251] "Destruction of infected animals or
contaminated articles would be permitted as a part of interstate or
foreign quarantine procedures, where such animals or articles are
likely to infect human beings with a dangerous disease and no
disposition other than destruction can safely be made." April 20,
1944, Report [to accompany H.R. 4624] on "Consolidation and
Revision of Laws Relating to the Public Health Service", by Mr.
Bulwinkle, from the Committee on Interstate and Foreign Commerce,
78th Congress, 2d Session, House of Representatives,
Report No. 1364, pp. 3-4.

[252] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 138-139.

[253] "(b) Regulations prescribed under this section
shall not provide for the apprehension, detention, or conditional
release of individuals except for the purpose of preventing the
introduction, transmission, or spread of such communicable diseases
as may be specified from time to time in Executive orders of the
President upon the recommendation of the National Advisory Health
Council and the Surgeon General.

(c) Except as provided in subsection (d),
regulations prescribed under this section, insofar as they provide
for the apprehension, detention, examination, or conditional
release of individuals, shall be applicable only to individuals
coming into a State or possession from a foreign country, the
Territory of Hawaii, or a possession." March 1,2,3,7,8,9,10, and
14, 1944: Hearing before a Subcommittee of the committee on
Interstate and Foreign Commerce, House of Representatives,
78th Congress, 2d Session, on H.R. 3379: "A Bill to
Codify the Laws Relating to the Public Health Service, and for
Other Purposes", pp. 16.

[254] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 139-140.

[255] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 16.

[256] The full language of the subsection reads as
follows: "On recommendation of the National Advisory Health
Council, regulations prescribed under this section may provide for
the apprehension and examination of any individual reasonably
believed to be infected with a communicable disease in a
communicable stage and (1) to be moving or about to move from a
State to another State; or (2) to be a probable source of infection
to individuals who, while infected with such disease in a
communicable stage, will be moving from a State to another State.
Such regulations may provide that if upon examination any such
individual is found to be infected, he may be detained for such
time and in such manner as may be reasonably necessary." March
1,2,3,7,8,9,10, and 14, 1944: Hearing before a Subcommittee of the
committee on Interstate and Foreign Commerce, House of
Representatives, 78th Congress, 2d Session, on H.R.
3379: "A Bill to Codify the Laws Relating to the Public Health
Service, and for Other Purposes", pp. 16.

[257] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 140.

[259] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 141.

[260] This is decreed under Section 322(c) of the
Act. April 20, 1944, Report [to accompany H.R. 4624] on
"Consolidation and Revision of Laws Relating to the Public Health
Service", by Mr. Bulwinkle, from the Committee on Interstate and
Foreign Commerce, 78th Congress, 2d Session, House of
Representatives, Report No. 1364, pp. 3-4.

[261] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 17. Section
364(a).

[265] The language of the section is carefully
structured, and reads as followed: "Sec. 362. Whenever the Surgeon
General determines that by reason of the existence of any
communicable disease in a foreign country there is serious danger
of the introduction of such disease into the United States and that
this danger is so increased by the introduction of persons or
property from such country that a suspension of the right to
introduce such persons and property is required in the interest of
the public health, the Surgeon General, in accordance with
regulations approved by the President, shall have the power to
prohibit, in whole or in part, the introduction of persons and
property from such countries or places as he shall designate in
order to avert such danger, and for such period of time as he may
deem necessary for such purpose." March 1,2,3,7,8,9,10, and 14,
1944: Hearing before a Subcommittee of the committee on Interstate
and Foreign Commerce, House of Representatives, 78th
Congress, 2d Session, on H.R. 3379: "A Bill to Codify the Laws
Relating to the Public Health Service, and for Other Purposes", pp.
16.

[266] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 17. Section
363.

[268] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 140.

[270] "Section 367. The Surgeon General is
authorized to provide by regulation for the application to civil
air navigation and civil aircraft of any of the provisions of
sections 364, 365, and 366 and regulations prescribed thereunder
(including penalties and forfeitures for violations thereof), to
such extent and upon such conditions as he deems necessary for the
safeguarding of the public health." March 1,2,3,7,8,9,10, and 14,
1944: Hearing before a Subcommittee of the committee on Interstate
and Foreign Commerce, House of Representatives, 78th
Congress, 2d Session, on H.R. 3379: "A Bill to Codify the Laws
Relating to the Public Health Service, and for Other Purposes", pp.
18.

[271] April 20, 1944, Report [to accompany H.R.
4624] on "Consolidation and Revision of Laws Relating to the Public
Health Service", by Mr. Bulwinkle, from the Committee on Interstate
and Foreign Commerce, 78th Congress, 2d Session, House
of Representatives, Report No. 1364, pp. 26.

[272] Statement of Dr. Herman E. Hilleboe, Senior
Surgeon, Medical Officer in Charge of Tuberculosis Control Section,
U.S. Public Health Service. June 13 and 14, Hearing before a
subcommittee of the committee on interstate and foreign commerce,
on "A bill to establish, for the investigation and control of
tuberculosis, a division in the Public Health Service, and other
purposes", House of Representatives, 78th Congress, 2d
Session, pp. 43.

[276] For some sense of scale, the rate of death
from tuberculosis far outpaced the rate of death from war: "Between
1776 and 1940 we have had 19 years of war in the United States and
during that time there were 244,450 soldiers who died from the
direct effect of war, but in 4 years, between 1937 and 1940, there
were 254,688 people died of tuberculosis in this country."
Statement of Hon. A. L. miller, Representative from Nebraska, June
13 and 14, Hearing before a subcommittee of the committee on
interstate and foreign commerce, on "A bill to establish, for the
investigation and control of tuberculosis, a division in the Public
Health Service, and other purposes", House of Representatives,
78th Congress, 2d Session, pp. 13. June 21, 1944, Report
[to accompany H.R. 4624] on "Consolidation and Revision of Laws
Relating to the Public Health Service", by Mr. Thomas of Utah, from
the Committee Education and Labor, 78th Congress, 2d
Session, Senate, Report No. 1027, pp. 6.

[277] "There has been a 13-percent increase in
tuberculosis deaths in England. There are 1,500,000 new cases in
France and in the Low Countries there has been an enormous
increase, and you cannot get any statistics out of Germany."
Statement of Dr. Victor Cullen, General Superintendent of the
Maryland State Tuberculosis Sanatorium. June 13 and 14, Hearing
before a subcommittee of the committee on interstate and foreign
commerce, on "A bill to establish, for the investigation and
control of tuberculosis, a division in the Public Health Service,
and other purposes", House of Representatives, 78th
Congress, 2d Session, pp. 24.

[278] June 13 and 14, Hearing before a subcommittee
of the committee on interstate and foreign commerce, on "A bill to
establish, for the investigation and control of tuberculosis, a
division in the Public Health Service, and other purposes", House
of Representatives, 78th Congress, 2d Session, pp.
24.

[280] Statement of Dr. Thomas Parran, Surgeon
General, United States Public Health Service. June 13 and 14,
Hearing before a subcommittee of the committee on interstate and
foreign commerce, on "A bill to establish, for the investigation
and control of tuberculosis, a division in the Public Health
Service, and other purposes", House of Representatives,
78th Congress, 2d Session, pp. 32.

[281] Statement of Dr. Victor Cullen, General
Superintendent of the Maryland State Tuberculosis Sanatorium. June
13 and 14, Hearing before a subcommittee of the committee on
interstate and foreign commerce, on "A bill to establish, for the
investigation and control of tuberculosis, a division in the Public
Health Service, and other purposes", House of Representatives,
78th Congress, 2d Session, pp. 25.

[283] June 13 and 14, Hearing before a subcommittee
of the committee on interstate and foreign commerce, on "A bill to
establish, for the investigation and control of tuberculosis, a
division in the Public Health Service, and other purposes", House
of Representatives, 78th Congress, 2d Session, pp.
3.

[284] Williams, Ralph Chester, M.D., The United
States Public Health Service, 1798-1950 . Commissioned Officers
Association of the United States Public Health Service, Washington,
D.C., 1951, pp. 98.

[285] This list of diseases is not to be confused
with the much more extensive list of diseases which would prohibit
a person from immigrating to the United States. This shorter list
of more dangerous diseases applies to everyone who attempts to set
foot on U.S. soil, rather than those who intend to immigrate.
Williams, Ralph Chester, M.D., The United States Public Health
Service, 1798-1950 . Commissioned Officers Association of the
United States Public Health Service, Washington, D.C., 1951, pp.
98.

[291] Until the mid-1960s, "PHS was led entirely by
career commissioned officers... with no member of the civil service
having ever run a bureau. The Surgeon General, although appointed
by the President, had always been a career member of the
Commissioned Corps. The 1968 reorganization transferred the
responsibility for directing PHS from the Surgeon General to the
Assistant Secretary for Health and Scientific Affairs (a political
appointee position that had been created originally as an adviser
to the Department Secretary). For the first time, a noncareer
official became the top official in PHS....In general, beginning in
this period the heads of PHS bureaus were increasingly not members
of the Corps, and were frequently brought in from outside the
Federal government. The Surgeon General was no longer responsible
for the management of PHS but became largely an adviser and
spokesperson on public health matters. Candidates for the position
of Surgeon General no longer necessarily came from the ranks of the
Corps but were often appointed from outside PHS and commissioned
upon their appointment." John L. Parascandola, Public Health
Service, pp. 487-93 in ed. George Thomas Kurian, A Historical
Guide to the U.S. Government . New York: Oxford University
Press, 1998.

[293] Division of Quarantine publication.
www.cdc.gov/dq, pp. 6. This transfer had far from neutral effects
on the strength of quarantine powers. The journal entry of the Dr.
Ray H. Vanderhook, Deputy Director, U.S. Quarantine Service and
Medical Officer in Charge, U.S. Quarantine Station, Staten Island,
New York on November 20, 1967, reads "Meeting at CDC with FQ people
and CDC people. Doesn't look good for future of quarantine."

[294] The authority over interstate control of
communicable human diseases shifted back to the CDC's Division of
Quarantine in response to the reappearance of tuberculosis in 1992.
Division of Quarantine publication. www.cdc.gov/dq, pp. 14.

[295] Even as early as 1967, the policy of requiring
vaccinations was relaxed so that no vaccinations were required
unless travelers were from areas known to be infected with
quarantinable diseases. Entry for December 4, 1967, Journal of Dr.
Ray H. Vanderhook, Deputy Director U.S. Quarantine Service; Medical
Officer in Charge, U.S. Quarantine Station, Staten Island, NY.

[314] Capitol Hill Hearing Testimony, September 28,
1994. By Richard J. Jackson, Director of the National Center for
Environmental Health, Centers for Disease Control and Prevention,
pp. 3.

[315] This regulation formalizes the series of
deregulating and modernizing moves during the 1970s. 50 FR 1516,
January 11, 1985, amending the regulations in 42 CFR Part 71. From
Department of Health and Human Services, Centers for Disease
Control, final rule with discussion of comments, 50 FR 1516,
January 11, 1985, amending the regulations in 42 CFR Part 71.

[317] Plaintiffs argued against the regulation on
other grounds as well, but the arguments addressed here include
only those relevant to the limits to the FDA's power under the PHS
Act. State of Louisiana et al. v. David Mathews, Secretary of
Health, Education & Welfare, et al. Civ. A. No.
75-1941. United States District Court for the Eastern District of
Louisiana. 427 F. Supp. 174. February 4, 1977, pp. 175.

[318] Plaintiffs based this argument on previous
regulations banning only infected psittacine birds and infected
lather brushes. State of Louisiana et al. v. David Mathews,
Secretary of Health, Education & Welfare, et al. Civ.
A. No. 75-1941. United States District Court for the Eastern
District of Louisiana. 427 F. Supp. 174. February 4, 1977, pp.
175-177.

[319] "Studies show that a large percentage of
turtles certified as organism-free are eventually recontaminated.
One survey showed a 54% recontamination rate; other figures suggest
incidence of recontamination which is higher. 40 Fed. Reg. At
22543. Under these circumstances, it is clear that the law does not
require the adoption of an onerous testing scheme under which every
turtle, or lot of turtles, is to be tested every week so as to find
that percent which becomes reinfected. Such a testing alternative
is patently unreasonable, and a total ban is permissible as
necessary to prevent the spread of communicable disease."
State of Louisiana et al. v. David Mathews, Secretary of
Health, Education & Welfare, et al. Civ. A. No.
75-1941. United States District Court for the Eastern District of
Louisiana. 427 F. Supp. 174. February 4, 1977, pp. 176-177.

[332] Division of Quarantine publication.
www.cdc.gov/dq, pp. 8. These resource problems also seemed to
stifle a moment in which a world health emergency could have
spurred a renewed interest in a strong communicable disease control
system; the outbreak of Ebola in Zaire occurred at the same point
in 1995 when the U.S. Congress was at its height of budged control.
Rochell, Anne, "CDC at 50: Crusades and Controversies". The Atlanta
Journal and Constitution, January 21, 1996, page 02H, pp. 2.

(a) Promulgation and enforcement by Surgeon
General. The Surgeon General, with the approval of the
Administrator [Secretary], is authorized to make and enforce such
regulations as in his judgment are necessary to prevent the
introduction, transmission, or spread of communicable diseases from
foreign countries into the States or possessions, or from one State
or possession into any other State or possession. For purposes of
carrying out and enforcing such regulations, the Surgeon General
may provide for such inspection, fumigation, disinfection,
sanitation, pest extermination, destruction of animals or articles
found to be so infected or contaminated as to be sources of
dangerous infection to human beings, and other measures, as in his
judgment may be necessary.

(b) Apprehension, detention, or conditional release
of individuals. Regulations prescribed under this section shall not
provide for the apprehension, detention, or conditional release of
individuals except for purpose of preventing the introduction,
transmission, or spread of such communicable diseases as may be
specified from time to time in Executive orders of the President
upon the recommendation of the National Advisory Health Council and
the Surgeon General.

(c) Application of regulations to persons entering
from foreign countries. Except as provided in subsection (d),
regulations prescribed under this section, insofar as they provide
for the apprehension, detention, examination, or conditional
release of individuals, shall be applicable only to individuals
coming into a State or possession from a foreign country or a
possession.

(d) Apprehension and examination of persons
reasonably believed to be infected. On recommendation of the
National Advisory Health Council, regulations prescribed under this
section may provide for the apprehension and examination of any
individual reasonably believed to be infected with a communicable
disease in a communicable state and (1) to be moving or about to
move from a State to another State; or (2) to be a probable source
of infection to individuals who, while infected with such disease
in a communicable stage, will be moving from a State to another
State. Such regulations may provide that if upon examination any
such individual is found to be infected, he may be detained for
such time and in such manner as may be reasonably necessary. For
purposes of this subsection, the term "State" includes, in addition
to the several States, only the District of Columbia." 42 USCS Sec.
264.

[335] "Medical Examinations" from Division of Global
Migration and Quarantine, National Center for Infectious Diseases,
Centers for Disease Control web site: www.cdc.gov .

[336] "Field Operations" from Division of Global
Migration and Quarantine, National Center for Infectious Diseases,
Centers for Disease Control web site: www.cdc.gov.

[337] Federal Register, August 16, 2000: Final Rule
allocating communicable disease control power between FDA and
CDC.

[338] Division of Quarantine publication.
www.cdc.gov/dq, pp. 11-12. The Refugee Act of 1980 created waivers
of excludability which allowed for the immigration of some aliens
who were infected with HIV or tuberculosis: "An alien with an
excludable medical condition may apply to the Attorney General for
a waiver if they meet certain criteria. For a communicable disease
such as tuberculosis or human immunodeficiency virus (HIV)
infection they must have certain familial relationship with a legal
resident of the United States." Division of Quarantine publication.
www.cdc.gov/dq , pp. 11

[343] Gostin, Lawrence O., Scott Burris, and Zita
Lazzarini, "The Law and the Public's Health: A Study of Infectious
Disease Law in the United States". Columbia Law Review, January
1999, v. 99, i. 1, pp. 59-128, pp. 66.

[344] Gostin, Lawrence O., Scott Burris, and Zita
Lazzarini, "The Law and the Public's Health: A Study of Infectious
Disease Law in the United States". Columbia Law Review, January
1999, v. 99, i. 1, pp. 59-128, pp. 95-97.

[353] Sharkey, Joe, "The Nation; And You thought
Germs in the Subway Were Bad." The New York Times, March 11, 2001,
Section 4, Page 3, Column 1, pp. 2.

[354] Gostin, Lawrence O., Scott Burris, and Zita
Lazzarini, "The Law and the Public's Health: A Study of Infectious
Disease Law in the United States". Columbia Law Review, January
1999, v. 99, i. 1, pp. 59-128, pp. 97.

[357] Sharkey, Joe, "The Nation; And You thought
Germs in the Subway Were Bad." The New York Times, March 11, 2001,
Section 4, Page 3, Column 1, pp. 1. Time spent in planes on the
ground is particularly dangerous, because the auxiliary ventilation
systems used during ground time are less effective. Further, "there
really are no minimum ventilation standards mandated by law to
flush out contaminants," according to Judith Murawski, an
industrial hygienist with the Association of Flight Attendants.
Sharkey, Joe, "The Nation; And You thought Germs in the Subway Were
Bad." The New York Times, March 11, 2001, Section 4, Page 3, Column
1, pp. 2-3.

[358] Sharkey, Joe, "The Nation; And You thought
Germs in the Subway Were Bad." The New York Times, March 11, 2001,
Section 4, Page 3, Column 1, pp. 2.

[359] The volume of antibiotic use in the United
States is highly controversial, particularly with regard to
antibiotics fed to cattle and other animals used for meat. Roughly
half of the antibiotics in the United States are consumed by
animals, and overuse of these antibiotics can – and have, in
at least one case – resulted in resistant strains of
foodborne pathogens. Burris, Scott, "Law as a Structural Factor in
the Spread of Communicable Disease". Houston Law Review ,
Dec. 30, 1999, v. 36, i. 5, p. 1755-1786, pp. 1764.

[361] "Health officials say the rise of TB ...is
largely a consequence of the migration of people from parts of the
world where the disease is common. It is thought that two-thirds of
the cases of TB brought into the United States originated in just
three countries: Mexico, the Philippines, and Vietnam." Smith,
Leef, "TB Still on Rise in N. Va." The Washington Post, Monday,
March 18, 2002, A1. In the Philippines, tuberculosis has become a
banal fact of life, with estimates that over forty percent of the
population is infected with the disease, and that roughly one third
of those infected have developed drug-resistant strains of the
disease. NPR report, 4/25/2002.

[362] "...tuberculosis continues to rise in Northern
Virginia, where state health officials say immigration is fueling
the spread,". "In 2001, there were 10 new reports of multi-drug
resistant TB in Virginia, up from seven cases in 2000 and four in
1999." Smith, Leef, "TB Still on Rise in N. Va." The Washington
Post, Monday, March 18, 2002, A1.

[390] In addition to the decrease in numbers, the
reserve corps is no longer trained effectively. The job offers no
routing training, no benefits, and no protection against firing
from the reservist's employer due to deployment as a reserve
officer. Spiegel, Jayson L., "Reinforce Our First Line of Defense".
The Washington Post, Sunday, January 20, 2002. B2.

[391] "...[E]ach alien would have to undergo a
complete physical including chest x-ray, blood tests for HIV and
syphilis, and cultures to exclude the presence of other detectable
diseases. A conservative estimate of the cost of such an
examination puts the cost in excess of $150 per person," Bennett,
Victoria L., "Medical Examination of Aliens: A Policy with Ailments
of its Own?" University of Arkansas at Little Rock Law Journal,
Fall 1989, v. 12, n. 4, pp. 751.

[392] March 1,2,3,7,8,9,10, and 14, 1944: Hearing
before a Subcommittee of the committee on Interstate and Foreign
Commerce, House of Representatives, 78th Congress, 2d
Session, on H.R. 3379: "A Bill to Codify the Laws Relating to the
Public Health Service, and for Other Purposes", pp. 16.